The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
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 21st 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.