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The Mythical History of Nomination Filibusters

A history lesson for Chris Matthews and others who claim there was a tradition of requiring 60 votes for confirmation.

President Trump's pick for the Supreme Court is likely to be confirmed because Republicans maintain a slim majority in the Senate. Some commentators lament this fact, and the lack of a filibuster option. Some go farther, suggesting that the current situation represents a departure from the historical norm. Tonight on MSNBC's "Hardball," for instance, Chris Matthews referred to "the old 60-vote requirement," as if this is a thing. He's mistaken, as are all those who claim there was a tradition of requiring super-majority support for judicial confirmations.

First some background. A filibuster is an attempt to prevent a vote on the merits by refusing to end debate. Under longstanding Senate tradition, debate on legislation is not to end so long as Senators still wish to speak to the subject. The way a filibuster is ended is through a cloture vote – a vote on a motion to end debate and proceed to a vote on the merits. The catch is that invoking cloture typically requires a super-majority vote – three-fifths of those voting under current rules. Therefore, if 40 Senators oppose something, they can prevent a majority vote on the merits.

Historically, filibusters were used to block particularly controversial legislation. In recent years, they are used to block most everything, at least where legislation is concerned. Nominations, on the other hand, were not traditionally filibustered. This is made abundantly clear in this Congressional Research Service (CRS) report on the history of cloture votes on nominations.

The use of filibusters to stall or block judicial nominations in the early 21sy Century was an historical aberration. Filibustering a judicial nomination was not even an option under the Senate rules until 1949 – and then were only swept into the cloture requirement by accident. Perhaps as a consequence, no one sought to use a filibuster to block a judicial nomination for years.

The first time a cloture motion was even filed for a judicial nomination was in 1968, when President Lyndon Johnson's attempt to elevate Associate Justice Abe Fortas to Chief Justice foundered in the face of bipartisan opposition. Over the next 35 years, cloture motions would only be filed on six more judicial nominations, none of which were blocked. (Two of these nominations were for the Supreme Court. The others were for lower courts.)

Prior to 2008, cloture motions to end debate had only ever been filed on four Supreme Court nominations: Fortas in 1968, William Rehnquist in 1971; Rehnquist again in 1986 (for elevation to Chief Justice) and Samuel Alito in 2006. (Indeed, most of the Senate Democrats who voted against cloture of the Gorsuch nomination had voted against cloture on Alito too.) While most Supreme Court nominees received overwhelming support (because most Senators were inclined to support any highly qualified nominee), this was not always the case. Justice Clarence Thomas was only confirmed 52-48, yet no filibuster was attempted. Indeed, no cloture motion was even filed.

The lack of cloture motions did not mean that all judicial nominations were unanimous affairs. To the contrary, some judicial nominations were defeated (Carswell, Haynesworth and Bork being three prominent examples) and others were close calls. Yet even when judicial nominations lacked the necessary super-majority support (two-thirds of those present and voting prior to 1975; three-fifths after), nominees went to the floor for up-or-down votes. Filibusters weren't even attempted.

The use of the filibuster to stall or block judicial nominees did not begin in earnest until 2003, when Senate Democrats sought to block the confirmation of Miguel Estrada to the U.S. Court of Appeals for the D.C. Circuit, in part because they feared the President Bush was positioning Estrada for a potential Supreme Court nomination. Several more filibusters of Bush nominees followed, until the so-called "Gang of 14" deal temporarily took the judicial filibuster off of the table. Senate Republicans responded in kind, filibustering a handful of President Obama's judicial nominees until the cloture threshold for nominations was lowered to a simple majority. (I covered some of the history here.)

The departure from historical practice was not Senator Harry Reid's decision to invoke the "nuclear option" to end lower court filibusters nor Senator Mitch McConnell's decision to do the same for the Supreme Court. The departure from historical practice was to attempt to filibuster judicial nominees in the first place.

I have never been a fan of filibusters of nominations – executive or judicial, whether made by a Republican or Democratic President. Reasonable people may disagree. What's not reasonable – or accurate – is to pretend there was a Senate tradition of nomination filibusters. That's simply not the case.

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  • Jason Cavanaugh||

    I think it would be nice if everything the Senate voted on required 60 votes.

    If you can't get 60% of people to agree on something, chances are that your idea isn't very reasonable.

  • TheAmazingEmu||

    Alternatively, maybe it isn't the thing voted on that is unreasonable.

  • Ghost of Patrick Henry||

    So, no more majority rule, huh?

    Progressives just keep stepping in it.

    Sad.

  • Rev. Arthur L. Kirkland||

    Hold that thought for the point at which Congress (by majority votes) and the President enlarge the Supreme Court to diminish the influence of backwardness on the Court.

    Carry on, clingers . . . so long as your betters permit.

  • The original jack burton||

    How odd that artie is calling on the Republican majority congress and trump to enlarge the supreme court and add another dozen or so conservatives to the SCOTUS.

    Or is that the "real artie"? Perhaps it is one of his many spoofers who delight in poking him in the eye.

  • TwelveInchPianist||

    It's possible that the constitution has evolved to the point where the number of justices is fixed at 9.

  • JesseAz||

    The living constitution view, or the Alice in wonderland view, means never having a rule fixed.

  • TwelveInchPianist||

    Embracing living constitutionalism to own the libs.

  • nonzenze||

    So we should change Article V to require only 26 States to ratify an amendment?

  • MatthewSlyfield||

    The difference is that the 2/3rds of states for ratification is baked into the constitution. As far as Senate votes go, there are only two issues that have super-majority requirements specified in the constitution, treaty confirmation and convicting on a bill of impeachment.

    There is actually a SCOTUS decision that predates the US Civil War that states that by the nature of what they are and what the constitution does and doesn't say on the matter, both the House and the Senate can change their internal rules at any time on simple majority vote, even if they pass rules that purport to require a super-majority for rule change.

  • nonzenze||

    I agree, otherwise past Senates would be able to bind a future one.

    The paean to 'majority rule' was misplaced. Some institutions are majoritarian, others are not.

  • Allutz||

    I agree with this idea, with the caveat that we must start back from ground zero with no laws at all on the books.

  • JesseAz||

    The problem is blind partisanship. And liberals have been far more blind in regard to justices. Go look at the last 8 justices. Liberal nominations have received nearly half of the GOP vote. At least half the GOP is willing to forgo politics to agree to a judge that has a decent legal record. Liberals on the other hand have only given conservative Nomi justices 20% of their vote. This includes Kennedy and Roberts, hardly radicals. Not even gorsuch or thomas can be considered radical.

    Liberals virw the courts as their final offensive maneuver to pass bills and their judges act as such. So they will never agree to a conservative judge even if they agree he is competent. This has been true since Bork.

  • JesseAz||

    Nominated not Nomi... Stupid auto correct

  • James Pollock||

    "The problem is blind partisanship."
    Very likely true.

    "And liberals have been far more blind in regard to justices"
    Ironically immediate example of blind partisanship: Check.

  • MonitorsMost||

    Your sample size is misleading. Since Roberts, the bipartisan votes have been slim. 5 republicans voted for Kagan. 9 republicans voted for Sotomayor. 4 Democrats for Alito.

  • James Pollock||

    The partisan votes may reflect a change in selection criteria. In eras past, Republicans tasked with constructing a nomination shortlist might have said "Hmmm. We want a person with a strong legal pedigree, who will vote conservatively" whereas now the choice might be "Hmmm. We want a strongly conservative person, who has some sort of legal background."... Something that goes back to the Republican search for Supreme Court nominees who could be counted on to overturn Roe v. Wade.

    Whereas the partisan rejection of Justice Sotomayor might ALSO be due to objection in the selection criteria, since we know one of the objectives in the shortlist that suggested her was that they were looking for a woman, and ideally a woman of color, who could be nominated rather than a strict preference for the best available judge.

    Let's not forget that W tried to nominate Harriet Myers. She had to withdraw from consideration because not even Republican Senators were convinced of her qualifications.

  • nonzenze||

    As an aside, I have suspicions that Myers was either intended to be a failed nomination or that were not disappointed that it failed, since it makes the next guy look better by comparison.

  • Rossami||

    I used to think this, too (that all laws should require a supermajority before you can infringe on the liberties of any of us). But as I tried to explain this idea to a drinking buddy, he kept turning it around on me. Eventually, I remembered by Logic 101 class and realized that any proposition can be reframed as the inverse of itself - a NOT proposition.

    The result is that any requirement for a supermajority is logically and practically indistinguishable from a minority-rules threshold. A requirement for a 60% supermajority quickly becomes a rule that lets the 40% minority completely control the agenda.

    The analysis would be different if you could add some rule requiring that the bill be proposed as an affirmative statement - something that takes away the NOT equivalence. But despite quite a bit of thinking on the topic, I have not yet found any wording that avoids the potential for abuse.

  • PubliusVA||

    Sort of, but there is a difference between action and inaction (shades of the old arguments over the individual mandate), and a supermajority requirement does not allow a minority to impose anything on the majority that has not at some time in the past been imposed by a supermajority. I think that's a significant difference from a minority-rules threshold.

  • nonzenze||

    Unless it's Congress trying to pass the Civil Rights Act over Strom's filibuster. In which case, it's Congress trying to put an end to infringement of liberty . . .

  • James Pollock||

    There are people in this country who A) like to complain about their government being inefficient and slow, and B) vote for candidates who make it inefficient and slowi when they are elected.

    The problem is that it is very easy to be against something, and it is harder to actually come up with a plan that works. That's why we get so many budgets that don't balance... being against raising taxes is easy and a winner back home, and being against cutting spending that benefits one's constituents is also easy and a winner back home. Figuring out an approach that solves the problem, doesn't cut benefits, and doesn't raise taxes, however, is VERY difficult and not always obvious when it is happening. So we wind up with sometimes passing something that solves the problem and doesn't cut benefits, but (oops) raises taxes, and sometimes passing something that solves the problem and doesn't raise taxes, but (oops) cuts benefits, and swinging back and forth between these eventually gets us something that is no longer solving the problem, either.

  • Lee Moore||

    Prof Adler's history may be right, but he has failed to appreciate what was nuclear about the nuclear option. It wasn't ending the filibuster for appointments. If Reid had done that in accordance with pre-existing Senate rules that would simply have been another round in the tit-for-tat.

    The nuclear bit was changing the filibuster rule by breaking the Senate rules for changing rules. You can't take that one back.

  • nonzenze||

    This rules-about-rules thing is a bit silly. The rules of the Senate are whatever 51 Senators say they are, no more, no less.

    The fact that there is a super-majority requirement for anything is by the grace of 51 Senators that want it that way.

  • Lee Moore||

    Well sure. It's silly in the Animal House sense - "you effed up, you trusted us."

    The whining and bleating about Garland not getting a hearing, and Republicans filibustering Obama nomiees and then slow walking them when they got the majority, and Grassley not sticking to the blue slip tradition and so on, is all about unwritten rules and norms. The other side denies they're offending because the "rules" the Dems are complaining about are mere puff.

    But the Senate rule book isn't a penumbral haze of disputed rules. It's all written down and it was followed all the way from 1789 to 2013. When the rules were changed they were changed in accordance with the rule for changing rules.

    Of course, a majority of 51 could blow that up and do whatever they like. But they hadn't for 224 years. And the Senate operated for 224 years as if the rule book contained the rules. But that's over. There's no basis, after that, for the restoration of a system of trust and deference for minority rights. Now it's just power, pure and simple. Maybe that's a good thing, maybe not. But it's certainly not the same thing. Not even slightly.

  • MatthewSlyfield||

    "The fact that there is a super-majority requirement for anything is by the grace of 51 Senators that want it that way."

    Not quite true. The US constitution explicitly requires 2/3rds super-majorities in the Senate for treaty ratification/confirmation and for convicting on a bill of impeachment. A simple majority vote in the Senate can't bypass a constitutional requirement.

  • nonzenze||

    @Matthew, that's correct. I accept your quibble and properly qualify my statement to refer only to the Senate's rules.

    There's no basis, after that, for the restoration of a system of trust and deference for minority rights.
    Of course there is -- when 51 Senators deem it so. If that's what you want, campaign to elect Senators to do so.

    The Gang of 14 was a prime example of this.
  • Joe_JP||

    Yes.

    The basic rule in the Constitution is a simple majority.

    There are a few things that require supermajorities and also this: "the yeas and nays of the members of either House on any question shall, at the desire of one fifth of those present, be entered on the journal."

    A special case where a minority can compel something.

  • MatthewSlyfield||

    "The nuclear bit was changing the filibuster rule by breaking the Senate rules for changing rules. You can't take that one back."

    Actually, that rule was effectively killed by SCOTUS pre-Civil-War.

    There is actually a pre-Civil-War SCOTUS decision that states that both the House and the Senate have the absolute right to change their internal rules by simple majority vote, even in the face of internal rules requiring a super-majority for rule changes.

  • ReaderY||

    Regardless of its relative decency or how often it was used, the filibuster rule was a duly enacted minority-protection rule of the senate, which under the rules required a two-thirds vote to amend.

    By overruling the parliamentarian on a point of order, the majority used force to bypass the rules, rather than applying them faithfully.

    The rule may have been wrong. It may have been obsolete. It may be disadvantageous to victory on pressing current matters.

    But the manner of its forced undoing, and the lack of respect for rules and for the rights of the minority it showed, boded poorly for the general good of the country.

  • nonzenze||

    Force? Like they beat up the parliamentarian and stole his lunch money?

    It is an ironclad rule of deliberative bodies that past instances cannot bind future ones. When 51 Senators vote to change the rules, the rules are changed right there. The past Senate cannot handcuff them to a 2/3rds majority, they can only create the rule as a norm that current Senators feel bound by tradition to follow.

    Or to put it another way, could a past Senate really create a rule that requires 9/10 or 19/20ths vote to overturn? Because if so, then Mitch should

    (1) Pass a rule with 51 Senators that any bill that modifies the tax code requires 2/3rds vote.
    (2) Pass a rule with 51 Senators that any future modification of the rules (including this one and #1 above) requires 19/20ths vote

    Presto -- the Trump tax cut is effectively permanent!

    Of course, this is an absurd example, but it illustrates what happens when you disregard the basic parliamentary principles that the British figured out centuries ago. Each newly sworn Senate has just as much right to govern as previous ones.

    [ That's not to say that comity and respect for tradition do not counsel that a newly-sworn Senate should strongly consider the longstanding rules as an persuasive precedent. ]

  • MatthewSlyfield||

    "Regardless of its relative decency or how often it was used, the filibuster rule was a duly enacted minority-protection rule of the senate, which under the rules required a two-thirds vote to amend."

    Except that SCOUTS declared that rule legally void before the Civil War.

    "By overruling the parliamentarian on a point of order, the majority used force to bypass the rules, rather than applying them faithfully."

    And given that SCOTUS declared the Senate rule requiring a super-majority for rule change unenforceable before the Civil War, the majority was on absolutely solid legal ground in doing so.

  • Smooth Like a Rhapsody||

    Does that 60-vote requirement contain an exception for instances where one gets a tingling sensation in one's leg?

  • swood1000||

    In Federalist 78 Alexander Hamilton called the judiciary the "least dangerous" branch of government:

    The judiciary, on the contrary, has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever. It may truly be said to have neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.

    However, with the advent of the "living" constitution (and especially after instances of very controversial "life") it became apparent that the judiciary had begun taking a role in formulating policy. Clearly if changes in the meaning of the Constitution are under their control then they are the master of the other two branches. Before, they were just interpreting the Constitution. After they began writing the constitution in controversial ways it was not surprising that the Senate started treating judicial nominees as political actors, voting on their perceived policy preferences rather than on their interpretive skills, and using filibusters as with all other partisan activity.

  • Joe_JP||

    "I have never been a fan of filibusters of nominations"

    Though various moves that blocked nominees in committee etc. (including Victoria Nourse, whose "filibuster" per a letter signed by David Bernstein) that were de facto filibusters were not accepted as such.

    Also, when Democrats finally ended filibusters of executive nominees after various egregious cases (e.g., Republicans deciding the D.C. court of appeals had enough people already), you found a reason to oppose it as unreasonable. A minority apparently could "filibuster" in effect the end of filibusters.

    There were various moves in the past to not take up judicial nominations on regular order. The fact a formal "filibuster" didn't occur is somewhat besides the point.

  • MatthewSlyfield||

    "There were various moves in the past to not take up judicial nominations on regular order."

    And like the filibuster on judicial nominations most of those moves are relatively recent and many were short lived.

    Prior to the 1920s, The relevant committee only put together a recommendation for the full Senate, they generally didn't control whether or not a full vote happened.

    The relevant senate committee didn't even start interviewing judicial nominees in hearings until the 1920s and questions about the nominee's judicial philosophy weren't introduced until the 1970s or 1980s.

    While Blue slips have been around since the early 20th century they have only acted as a complete block on committee action on a judicial nomination for two relatively brief periods, a twenty years span starting in the 1950s and 2000-2003.

    As for Garland, contrary to what many Democrats have tried to claim, while uncommon, there are cases of the Senate refusing to act on a Supreme Court nomination that go all the way back to the 1840s. Garland was the 10th Supreme Court nomination on which the Senate took no action.

    Lis t of SCOTUS Nominees

  • Joe_JP||

    Reference was made to the "21st Century."

    "Recent" can mean various things. Means to block judges was regularly done during the Clinton Administration. Kagan was but one such case. If we are going to try to be concise about the process, a basic concern for me is to truly be concise. His not calling de facto filibusters, even things letters against particular targets called as such and in the case cited was signed by his co-blogger, I find it a tad bit specious.

    We can talk about the relative modern concept of hearings though "questions about the nominee's judicial philosophy" or opposition to the person who appointed the judge was used, at least in certain cases (I simply don't know enough about the 19th Century practice of lower court nominees, but do know multiple cases of justices nominated that the Senate found a way to block without simply having an up and down vote on the matter) in the distant past.

    But, you cite just that as to Garland, though in fact as I recall people made such a comment -- something like what was done to Garland did not happen since the 19th Century. Fortas, e.g., got a confirmation hearing. Republicans didn't appeal to some power simply to block. They made up a new rule, at most citing what one senator said in a somewhat non-applicable (e.g., the timing suggested a summer nomination, not one early in the year) case years ago and made it into a "rule."

  • Joe_JP||

    Notable too that two key cases of special means used to block executives from making judicial picks or not act on those made were "accidental" presidents Tyler and Andrew Johnson. The basic legitimacy of the people in question were in question on some basic level for many of the senators involved.

    Again, if we are going to have a careful analysis of what happened, a full accounting is helpful.

  • ScottK||

    No one does mythical history like the Federalists!

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