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Wednesday, July 3, 2013

Cloture Attempts on Nominations: Data and Historical Development

Richard S. Beth
Specialist on Congress and the Legislative Process

The motion for cloture is available in the Senate to limit debate on nominations, as on other matters. Cloture can, accordingly, be used to overcome a filibuster against a nomination. Table 6 lists all nominations against which cloture has been moved, showing the outcome of the cloture attempt and the final disposition of the nomination. It would be erroneous, however, to treat this table as a list of filibusters on nominations. Filibusters can occur without cloture being attempted, and cloture can be attempted when no filibuster is evident. Often today, moreover, it appears that Senate leaders generally avoid bringing to the floor nominations on which a filibuster seems likely. In such cases there are no means by which to identify the merely threatened filibuster.

Until 1949, cloture could not be invoked on nominations. From then through 2012, cloture was sought on 122 nominations. On 46 of these nominations cloture was invoked, and on 49 others no cloture motion received a vote. All but one of these 95 nominations was confirmed. Only on the remaining 27 nominations did the Senate ultimately reject cloture; of these, 21 were not confirmed.

Until 1968, cloture was moved on no nominations, and from then through 1978, it was moved on only two. Even thereafter, in no single Congress from the 96
th through the 102nd (1979 through 1992) was cloture sought on more than three nominations, and in no Congress from the 104th through the 107th (1995 through 2002) was it sought on more than five. Between these last two periods, however, the 103rd Congress (1993-1994) foreshadowed a more recent pattern, with cloture action on 12 nominations. Most recently, in every Congress of the past decade (2003 through 2012) except the 110th, cloture has been attempted on at least 14 nominations. The same five Congresses that saw cloture action on 12 or more nominations are those in which the Senate minority was of the party opposite that of the President.

In all the Congresses or periods identified, no more than a quarter of nominations with cloture attempts failed of confirmation, except in the 108
th Congress (2003-2004), when almost 80% of such nominations (mostly to judicial positions) were not confirmed. Prominent in this Congress were discussions of making cloture easier to get on nominations by changing Senate Rules through procedures not requiring a super-majority vote on cloture. In the 112th Congress, by contrast, cloture was moved on a record 33 nominations (again mostly to judicial positions), but on 23 of these nominations, no cloture vote ultimately occurred.

Overall, cloture has been sought on nominations to 67 executive and 55 judicial positions. Judicial nominations, however, predominated in the two Congresses just noted and before 2003, except in the 103
rd Congress (1993-1994). In that Congress and the 111th (2009-2010), both at the beginning of a new presidential Administration, as well as in the 109th Congress (2005-2006), executive branch nominations predominated.

Few of the nominations on which cloture has been sought have been to positions at the highest levels of the government. These have included four nominations to the Supreme Court and seven to positions in the President’s Cabinet (or ones often considered to be at the Cabinet level).

Date of Report: June 26, 2013
Number of Pages: 20
Order Number: RL32878
Price: $29.95

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