Cloture Attempts on Nominations

CRS Report for Congress
Cloture Attempts on Nominations
April 22, 2005
Richard S. Beth
Specialist in the Legislative Process
Government and Finance Division
Betsy Palmer
Analyst in American National Government
Government and Finance Division

Congressional Research Service ˜ The Library of Congress

Cloture Attempts on Nominations
Cloture is the only means by which the Senate can vote to limit debate on a
matter, and thereby overcome a possible filibuster. It would be erroneous, however,
to assume that cases in which cloture is sought are the same as those in which a
filibuster occurs. Cloture may be sought when no filibuster is taking place, and
filibusters may occur without cloture being sought.
Until 1949, cloture could not be invoked on nominations, and before 1980 thisth
action was attempted only twice. From the 96 Congress (1979-1980) through the
102nd (1991-1992), cloture was never sought on more than three nominations in a
single Congress, but since then this level has been exceeded three times.
From 1949 through 2004, cloture was sought on 49 nominations, and invoked
on 21. Except in the 103rd Congress (1993-1994), most of the nominations involved
have been judicial. Fourteen of the 49 nominees were not confirmed, all of whom
were among the 18 on whom the Senate rejected cloture. Eleven of the 14th
nominations not confirmed were considered during the 108 Congress (2003-2004).
Cloture has been sought on three nominations to the Supreme Court. In 1968,
a cloture vote on the motion to proceed to consider the nomination of Abe Fortas to
be Chief Justice failed. In 1971, when he was first appointed to the court, and again
in 1986 when he was nominated to be Chief Justice, opponents of William H.
Rehnquist mounted a filibuster. Though the cloture vote in 1971 was unsuccessful,
Rehnquist was confirmed to the court; in 1986, the cloture vote was successful.
This report is to be updated after each Congress in which additional nominations
are subjected to cloture attempts. Filibusters and cloture are discussed more
generally in CRS Report RL30360, Filibusters and Cloture in the Senate. The
process by which the Senate considers nominations is discussed more generally in
CRS Report RL31980, Senate Consideration of Presidential Nominations:
Committee and Floor Procedure, and CRS Report RL31948, Evolution of the
Senate’s Role in the Nomination and Confirmation Process: A Brief History.

Cloture, Filibusters, and How They Differ..........................1
Frequency of Cloture Attempts on Nominations......................2
Historical Development of Cloture Attempts on Nominations...........3
Positions in Relation to Which Cloture Was Sought...................6
List of Tables
Table 1. Cloture Attempts and Action on Nominations....................3
Table 2. Frequency and Success of Cloture Attempts on Nominations,
by Time Period, 1949-2004......................................4
Table 3. Cloture Action on Judicial and Executive Nominations,
by Time Period, 1967-2004......................................5
Table 4. Nominations Subjected to Cloture Attempts, 1968-2004............7

Cloture Attempts on Nominations
Cloture, Filibusters, and How They Differ
Senate Rules place no general limits on how long consideration of a nomination
(or most other matters) may last. Owing to this lack of general time limits,
opponents of a nomination may be able to use extended debate or other delaying
actions to prevent a final vote from occurring. Although a voting majority of
Senators may be prepared to vote for a nominee, the nomination cannot be confirmed
as long as other Senators, presumably a voting minority, are able to prevent the vote
from occurring. The use of debate and procedural actions for the purpose of
preventing or delaying a vote is a filibuster.
The motion for cloture is the only procedure by which the Senate can vote to
place time limits on its consideration of a matter. It is, therefore, the Senate’s most
usual means of attempting to overcome a filibuster. When the Senate adopts a
cloture motion on a matter, known as “invoking cloture,” further consideration of the
matter is limited to 30 hours.1 By invoking cloture, the Senate may be able to ensure
that a question will ultimately come to a vote, and can be decided by a voting
The cloture rule permits Senators to move for cloture repeatedly, if necessary.
The Senate, however, can impose the constraints of cloture only by a super-majority
vote. For most matters, including nominations, three-fifths of the full Senate, or 60
votes, is required to invoke cloture. As a result, even if a majority of Senators
support a nomination, opponents may still be able to prevent a vote on it by defeating
any attempt to invoke cloture. Although the nomination itself can always be
approved by a simple majority of Senators present and voting, the support of a super-
majority may be required to limit consideration and enable the Senate to reach a vote.
While cloture affords the Senate a means of overcoming a filibuster, it is
erroneous to assume that cases in which cloture is sought are always the same as
those in which a filibuster occurs. Cloture may be sought when no filibuster is taking
place, and filibusters may occur without cloture being sought. The reason is that
cloture is sought by supporters of a matter; while filibusters are conducted by its
opponents. Leaders of the majority party, or other supporters, may move for cloture
even when opponents do not assert that they are attempting a filibuster, or when no

1 Senate Rule XXII, paragraph 2. U.S. Senate, Committee on Rules and Administration,
Senate Manual, Containing the Standing Rules, Orders, Laws, and Resolutions Affecting thethst
Business of the United States Senate, S.Doc. 107-1, 107 Cong., 1 sess., prepared by
Andrea LaRue under the direction of Kennie Gill, Staff Director (Washington: GPO, 2002),
sec. 22.2. During the 30 hours, no single Senator, other than the party floor leaders and the
managers of the debate, may occupy more than one hour in debate.

extended debate or delaying actions have actually occurred. They may do so in
response to a threat or perceived threat of a filibuster, or simply in an effort to speed
It is also possible for opponents of a matter to engage in a filibuster without
supporters deciding to move for cloture. Supporters may refrain either because they
think they lack the votes to obtain cloture, because they believe they can overcome
any delaying actions and reach a vote without cloture, or because they hope to resolve
the matter in dispute by some negotiated accommodation. This situation may be less
common today, but does seem to have occurred in relation to nominations in earlier
If cloture is not an automatic indicator of a filibuster, neither is any other
specific procedural action. A filibuster is a matter of intent; any course of action by
opponents of a matter may be a filibuster if it is undertaken with the purpose of
blocking or delaying a vote. Yet any of the procedural actions that might be used to
delay or block a vote might also be used for other purposes. As a result, filibusters
cannot simply be identified by explicit or uniform criteria, and there is no commonly
accepted set of criteria for doing so. Instead, determining whether a filibuster is
occurring in any specific case typically requires a degree of subjective judgment.
For these reasons, it would be a misuse of the following data, identifying
nominations on which cloture was sought, to treat them as identifying nominations
subjected to filibuster. It would equally be a misinterpretation to assume that all
nominations on which cloture was not sought were not filibustered (especially for
periods before cloture could be moved on nominations, as described in the next
section). This report provides data only on nominations on which cloture motions
were offered. It is not to be taken as providing systematic data on nominations that
were or were not filibustered. It would not be feasible to develop a list of measures
filibustered unless a commonly accepted single standard for identifying what
constitutes filibustering could first be established.2 At most, the data presented here
may be regarded as identifying some potentially likely cases in which a filibuster (by
some appropriate definition) may have occurred.
Frequency of Cloture Attempts on Nominations
The Senate first adopted a cloture rule in 1917. Until 1949, cloture could be
moved only on legislative measures, and nominations could not be subjected to
cloture attempts.3 From 1949 through 2004 (81st-108th Congresses), cloture was

2 These questions of method are discussed in more detail in Richard S. Beth, “What We
Don’t Know About Filibusters,” paper presented at the annual meeting of the Western
Political Science Association, Portland, Ore., March 1995 (available from the author).
3 U.S. Congress, Senate, Committee on Rules and Administration, Senate Cloture Rule:
Limitation of Debate in the Congress of the United States and Legislative History of
Paragraph 2 of Rule XXII of the Standing Rules of the United States Senate (Cloture Rule),th
S.Print 99-95, prepared by the Congressional Research Service, Library of Congress, 99st
Cong., 1 sess. (Washington: GPO, 1985), pp. 17, 21, 38-39, 105-112.

sought on 49 nominations.4 Table 4, following the text, identifies the 49
nominations, the number of separate cloture motions filed on each, the ultimate
outcome of the cloture attempt in each case, and the disposition of each nomination.
As shown by the summary in Table 1, the Senate invoked cloture on 21 of these 49
nominations. On another 10 nominations, cloture motions were offered, but never
came to a vote. On the remaining 18 nominations, the Senate voted against imposing
Table 1. Cloture Attempts and Action on Nominations
FinalAction on Nomination
Action Conf i r m e d Not
Invoked21 021
No vote10 010
Rejected 41418
Source: Table 3.
Of the 49 nominations on which cloture was sought, 35 ultimately won
confirmation. Of those 35 nominations, the Senate invoked cloture on 21, the Senate
did not vote on the cloture petitions in 10 cases, and in four cases the nominations
were confirmed despite the Senate rejecting cloture on the nomination. In 14 cases,
11 of them from the 108th Congress (2003-2004), the Senate refused to invoke cloture
and the nominations were unsuccessful. In earlier Congresses, only three of the 35
nominations on which cloture was sought were ultimately rejected. These were
!Justice Abe Fortas to be Chief Justice of the United States in 1968;
!Sam Brown to be Ambassador during his tenure as Head of
Delegation to the Conference on Security and Cooperation in Europe
(CSCE) in 1994; and
!Dr. Henry Foster to be Surgeon General of the United States in


Historical Development of Cloture Attempts on Nominations
Even after Senate rules began to permit cloture on nominations in 1949, cloture
was sought on none until 1968, when a motion to proceed to consider the nomination
of Supreme Court Associate Justice Abe Fortas to be Chief Justice was debated at
length. After the Senate rejected cloture on the motion to proceed, 45-43, President

4 For these purposes, five State Department nominations considered concurrently are
counted as one, and the simultaneous nomination of a single individual to two positions is
counted as one.

Lyndon B. Johnson withdrew the nomination at Fortas’ request. In 1969 and 1970,
the nominations of Clement F. Haynsworth and G. Harrold Carswell to the Supreme
Court were defeated after lengthy debate, but no cloture motion was filed on either.
When the Senate considered the nomination to the Supreme Court of William H.
Rehnquist late in the 1971 session, however, cloture was quickly sought. Though the
Senate did not invoke cloture (52-42), the nomination was subsequently confirmed.
In 1975, the majority required for invoking cloture on most matters, including
nominations, was changed from two-thirds of Senators present and voting to three-
fifths of the full membership of the Senate (normally 60).5 This change in the rules
generally meant that the threshold for invoking cloture was lowered; if all 100
Senators participated in the vote, the previous rule required the votes of 67 to invoke
cloture, the new rule required 60 votes, regardless of how many Senators
Cloture was sought on no other nomination until 1980. That occurrence was the
first in which cloture was sought on a nomination to an executive branch position,
that of William G. Lubbers to be General Counsel of the National Labor Relations
Board. Cloture was invoked, and the nomination was confirmed.
Table 2. Frequency and Success of Cloture Attempts
on Nominations, by Time Period, 1949-2004
Nominations on which cloture was:
Congresses and (years)MovedInvoked
NumberAverage perNumberPercent of

81st-89th (1949-1966)000 —

90th-102nd (1967-1992)120.9975%

103rd-108th (1993-2004) 376.21232%

As Table 2 illustrates, the frequency with which cloture has been sought on
nominations has increased in recent years (a development that reflects the trend in the
overall frequency of cloture motions). Before the 103rd Congress, cloture was soughtthth
on as many as three nominations only in the 96 Congress (1979-1980) and the 99
Congress (1985-1986). Since then, however, this level has been exceeded threerd
times. Cloture was sought on 12 nominations in the 103 Congress (1993-1994),
five in the 107th (2001-2002), and 14 in the 108th (2003-2004). These three
Congresses were also the only ones since 1981 in which the presidency, Senate, and
House were all controlled by the same political party.6 In addition, the 103rd and

5 Committee on Rules and Administration, Senate Cloture Rule, pp. 30-32, 53-54, 119-121.
6 The Republican Party lost control of the Senate during the 1st session of the 107th

107th Congresses were each the first of a new presidency, so that the number of
nominations to be considered was presumably especially large.
Table 2 also indicates that, as the frequency of cloture attempts on nominations
has increased, the frequency of their success has tended to decrease. This
relationship appears to suggest that cloture is now being sought more often in casesrd
when it is unlikely to be invoked. This shift was evident especially in the 103
Congress, when cloture was successfully invoked on only four of the 12 nominationsth
where attempted, and in the 108 Congress, when it was invoked on none of the 14
nominations on which it was attempted. In other Congresses, the proportion of
cloture attempts that succeeded has generally been much higher.
In the 108th Congress (2003-2004), the pattern of Senate action on nominations
on which cloture was sought displayed several distinctive features. First, the
maximum number of cloture motions offered on each nomination was higher than
ever before. In earlier Congresses, as many as three cloture motions had been offered
on a single nomination only on three occasions (two in 1980 and one in 1994). In the
108th Congress, by contrast, one nomination was subjected to seven cloture motions
and another to four. Second, when the Senate sought cloture on a nomination but
was unable to confirm it, the Senate in the 108th Congress retained the nomination
on its calendar until final adjournment. In earlier Congresses, nominations that were
not confirmed after cloture attempts were typically either withdrawn or returned to
the President. Both these shifts may represent indications of an increased intensity
with which supporters of these nominations were attempting to secure Senate votes
on them.
Table 3. Cloture Action on Judicial and Executive Nominations,
by Time Period, 1967-2004
Judi ci al Execut i v e
Congresses ClotureCloture NotClotureCloture Not
and (years)InvokedInvokedInvokedInvoked
90th-102nd (1967-1992) 5 3 a 4 0

103rd (1993-1994) 1 1 3 7 a

104th-107th (1995-2002) 5 2 3 1a

108th (2003-2004) 0 12 b 0 2 a

Source: Table 4.
No tes:
a.On one nomination in each of these groups, cloture was ultimately rejected and the nominee was
not confirmed.
b.On 10 nominations in this group, cloture was ultimately rejected and the nominee was not

Positions in Relation to Which Cloture Was Sought
Most of the nominations on which cloture has been attempted have been to
clearly secondary or subordinate positions. Only three have been to the Supreme
Court, and two to offices at the level of the President’s Cabinet. In general, most
nominations on which cloture has been sought have been to positions on the federal
bench. This circumstance perhaps reflects the Senate’s traditional inclination to
permit the President generally wide latitude in selecting officials to serve under him
in executive branch positions. Only in the 103rd Congress was cloture sought chiefly
on nominations to positions in the executive branch.
Of the 12 nominations on which cloture action occurred during the 103rd
Congress, 10 were for executive branch positions. Except in that Congress, most
nominations on which cloture has been sought have been to the federal courts. Table

3 summarizes the outcomes of cloture action on executive and judicial nominations,

broken down into four periods that display distinctive patterns.

Table 4. Nominations Subjected to Cloture Attempts, 1968-2004
Cloture Final Di sposition
Congress Nominee P osition Motions Outcome of
and YearFiledof ClotureNomination
90th, 1968Abe FortasChief Justice1rejectedwithdrawn
92nd, 1971William H. RehnquistAssociate Justice2rejectedconfirmed
96th, 1980William A. LubbersGeneral Counsel,3invokedconfirmed
National Labor
Relations Board
96th, 1980Don ZimmermanMember, National3invokedconfirmed
Labor Relations
96th, 1980Stephen G. BreyerCircuit Judge2invokedconfirmed
98th, 1984J. Harvie WilkinsonCircuit Judge2invokedconfirmed
99th, 1986Sidney A. FitzwaterDistrict Judge1invokedconfirmed
99th, 1986Daniel A. ManionCircuit Judge1withdrawnconfirmed
99th, 1986William H. RehnquistChief Justice1invokedconfirmed
100th, 1987Melissa WellsAmbassador1invokedconfirmed
100th, 1987C. William VeritySecretary of1invokedconfirmed
102nd, 1992Edward Earl Carnes,Circuit Judge1invokedconfirmed
103rd, 1993Walter DellingerAssistant Attorney2rejectedconfirmed
103rd, 1993five nominations aState Department2rejectedconfirmed
103rd, 1993Janet NapolitanoU.S. Attorney1invokedconfirmed
103rd, 1994M. Larry LawrenceAmbassador1fell bconfirmed
103rd, 1994Rosemary BarkettCircuit Judge1withdrawnconfirmed
103rd, 1994Sam BrownAmbassador3rejectedreturned to
103rd, 1994Derek ShearerAmbassador2invokedconfirmed
103rd, 1994Ricki TigertBoard Member and2invokedconfirmed
Chair, Federal
Deposit Insurance c

103rd, 1994H. Lee SarokinCircuit Judge1invokedconfirmed

Cloture Final Di sposition
Congress Nominee P osition Motions Outcome of
and YearFiledof ClotureNomination
103rd, 1994Buster GlossonAir Force Lieutenant1withdrawnconfirmed
General (retired)
103rd, 1994Claude Bolton, Jr.Air Force Brigadier1vitiated dconfirmed
103rd, 1994Edward P. Barry, Jr.Air Force Lieutenant1vitiated dconfirmed
General (retired)
104th, 1995Henry FosterSurgeon General2rejectedno final vote
105th, 1997Joel I. KleinAssistant Attorney1invokedconfirmed
105th, 1998David SatcherSurgeon General 1invokedconfirmed
106th, 1999Brian TheadoreDistrict Judge1rejectedconfirmed
106th, 2000Marsha L. BerzonCircuit Judge1invokedconfirmed
106th, 2000Richard A. PaezCircuit Judge1invokedconfirmed
107th, 2002Lavenski R. SmithCircuit Judge1invokedconfirmed
107th, 2002Richard R. CliftonCircuit Judge1invokedconfirmed
107th, 2002Richard H. CarmonaSurgeon General 1invokedconfirmed
107th, 2002Julia Smith GibbonsCircuit Judge1invokedconfirmed
107th, 2002Dennis W. SheddCircuit Judge1vitiated dconfirmed
108th, 2003Victor J. WolskiJudge, Court of1vitiated dconfirmed
108th, 2003 Miguel A. EstradaCircuit Judge7rejectedwithdrawn
108th, 2003Michael O. LeavittAdministrator,1withdrawnconfirmed
Environmental c
Protection Agency
108th, 2003Charles W.Circuit Judge1rejectedno final vote
Pickering, Sr.
108th, 2003William H. Pryor, Jr.Circuit Judge2rejectedno final vote
108th, 2003 Priscilla RichmanCircuit Judge4rejectedno final vote
108th, 2003Carolyn B. KuhlCircuit Judge2rejectedno final vote

108th, 2003Janice R. BrownCircuit Judge1rejectedno final vote

Cloture Final Di sposition
Congress Nominee P osition Motions Outcome of
and YearFiledof ClotureNomination
108th, 2003Thomas C. DorrUndersecretary of2rejectedno final vote
Agriculture for Rural
Development and
Board Member,
Commodity Creditc
108th, 2004Marcia G. CookeDistrict Judge1withdrawn confirmed
108th, 2004William Gerry MyersCircuit Judge1rejectedno final vote
108th, 2004 David W. McKeagueCircuit Judge1rejectedno final vote
108th, 2004Henry W. SaadCircuit Judge1rejectedno final vote
108th, 2004 Richard A. GriffinCircuit Judge1rejectedno final vote
Sources: Compilations by CRS and Senate Library; Legislative Information System of the U.S. Congress; U.S.thst
Congress, Senate, Committee on Rules and Administration, Senate Cloture Rule, committee print 99-95, 99 Cong., 1
sess. (Washington: GPO, 1985), pp. 44-70, 78-85; Congressional Record (Daily Digest); and Congressional Quarterly
Almanac for 1986, 1987, 1992, 1995, 1999.
Notes: Executive branch nominations in roman; Judicial nominations in italic. Final outcome of cloture attempt is
shaded when cloture was not invoked. Disposition of nomination is shaded when the nominee was not confirmed.
a. These five nominations to various positions in the State Department received consideration and cloture action
concurrently, and are counted as one case in the table.
b. Cloture motion became moot and received no action.
c. The individual was nominated simultaneously for the two positions specified, and cloture action took place on each
nomination in turn. The table counts all actions on one nominee as one case.
d. Senate unanimously consented to treat the cloture motion as having no effect.