Speeches & Floor Statements

Floor Speech: Filibustering to Death the Gorsuch Nomination Would Fly in the Face of 230 Years of Senate Tradition

Posted on March 21, 2017

President Trump’s nomination of Judge Neil Gorsuch to be a member of the United States Supreme Court is being considered this week in the Senate Judiciary Committee. Soon the nomination is likely to move to the floor for debate.

Some have suggested that instead of allowing a majority of senators to decide whether to approve the Gorsuch nomination, there should first be a “cloture” vote to determine whether to cut off debate. 

Cutting off debate requires the approval of 60 senators.  So, if 41 of the 46 Democrat senators vote not to cut off debate, there would never be an up-or-down majority vote to approve Gorsuch. 

In other words, the 41 Democrat senators would have filibustered to death the Gorsuch nomination. 

Filibustering to death the Gorsuch nomination—or any presidential nomination, for that matter—flies in the face of 230 years of Senate tradition.

Throughout the Senate’s history, approval of even the most controversial presidential nominations has required only a majority vote.     

For example, in 1991, President George H.W Bush nominated Judge Clarence Thomas to be an Associate Justice on the United States Supreme Court. 

The debate was bitter. The Senate confirmed Thomas narrowly, 52-48.  Although Senate rules    allowed any senator to try to filibuster the nomination to death, none did.

In fact, Senate rules have always allowed senators the option to filibuster to death a presidential nomination.  Yet, it has almost never happened. 

According to the former Senate Historian, with one possible exception, which I will describe later, the number of Supreme Court justices in our country’s history who have been denied their seats by filibuster is zero. 

The number of cabinet members in our country’s history who have been denied their seats by a filibuster is zero. 

The number of federal district judges in our country’s history who have been denied their seats by a filibuster is zero. 

And until 2003, the number of circuit judges in our country’s history who had been denied their seats by filibuster was zero.

Sen. Everett Dirksen did not filibuster President Johnson’s nominees. Sen. Robert Byrd did not filibuster President Reagan’s nominees.  Sen. Howard Baker did not filibuster President Carter’s nominees.  Sen. Bob Dole did not filibuster President Clinton’s nominees. 

During most of the 20th century, when one party controlled the White House and the Senate seventy per cent of the time, the minority never filibustered to death a single presidential nominee.

On the other hand, there have been plenty of filibusters on legislation. So many that in 1917, the Senate adopted a cloture rule as a way to end filibusters.  The rule was amended in 1949, 1959, 1975, 1979, and 1986 – always in response to filibusters on legislation, never on nominations.

It was the 1975 change that established the current cloture standard of 60 votes to end debate, except on amendments to the Standing Rules.  

Filibustering a presidential nomination has always been treated differently than filibustering a legislative matter.

The filibuster of legislation is perhaps the Senate’s most famous characteristic.  It has been called “democracy’s finest show, the right to talk your head off.” 

As the actor Jimmy Stewart says in the movie “Mr. Smith Goes to Washington,”  “Wild Horses aren’t going to drag me off this floor until those people have heard everything I’ve got to say, even if it takes all winter.”

The late Sen. Robert Byrd of West Virginia described the importance of the legislative filibuster in a different in this way. “Our   Founding Fathers,” Sen. Byrd said in his last speech, “intended the Senate to be a continuing body that allows for open and unlimited debate and the protection of minority rights.  Senators have understood this since the Senate first convened.”

In fact, the whole idea of the Senate is not to have majority rule on legislation. 

Throughout Senate history, the purpose of the legislative filibuster has been to force consensus on issues, to force there to be a group of senators on either side who have to respect one another’s views so they work together and produce 60 votes on important matters.

Nominations have always been treated differently from legislation. 

For example, under Senate Rule 14, any Senator can bring legislation directly to the Calendar of General Orders, bypassing committees.  There is no such power for nominations.  

Senate rules allow debate—and therefore the possibility of a filibuster—on a motion to proceed to legislation.  Debate is not allowed on a motion to proceed to nominations.

In summary, while Senate rules have always allowed extended debate or filibusters, the filibuster was never used to block a nomination until recently.  

As I mentioned earlier, it was never used to block a Cabinet nomination. Never used to block a federal district judge. Until 2003, never used to block a circuit judge.  And never used to block a Supreme Court Justice, with one possible exception.

That exception occurred in 1968 when President Lyndon Johnson sought to elevate Associate Justice Abe Fortas to be Chief Justice. 

When it became clear that a Senate majority would not agree, Johnson engineered a 45-43 cloture vote so that Fortas could save face and appear to have won something, according to the former Senate Historian. Fortas then asked the President to withdraw the nomination.

Other than the Fortas exception, the filibuster was never used to block ANY judicial nomination until 2003 and 2004 when Democrats decided to use the 60 vote cloture requirement to block ten of President George W. Bush’s nominees. 

This unprecedented action produced a threat by Republicans to change the Senate rules to make it clear that only a majority vote is required to approve a presidential nomination. 

There was a negotiation and eventually five of Bush’s nominees were approved, five were blocked and the rules were not changed.

Then in 2011 and 2013 Republicans returned the favor by seeking to block five of President Obama’s nominees for the circuit court by insisting on a 60 vote cloture on each.      

Republicans alleged the president was trying to pack the Circuit Court of the District of Columbia with three liberal judges.  

To overcome Republican objections, Democrats invoked the so-called “nuclear option.”  They broke the Senate rules to change the rules.  The new rule eliminated the possibility of 60 vote cloture motions for all presidential nominees except for the Supreme Court.  

There have been other examples of minority senators filibustering nominations to death, all of them during the last three administrations, and all involving subcabinet nominations.

And, of course, there have been delays in considering nominations. 

My own nomination in 1991 as U.S. Education Secretary was delayed 51 days by a Democratic senator.  President Reagan's nomination of Ed Meese as Attorney General of the United States was delayed a year by a Democratic Senate. 

No one has ever disputed our right in the Senate, regardless of who was in charge, to use our constitutional duty of advice and consent to delay and examine, sometimes cause nominations to be withdrawn or even to defeat nominees by a majority vote. 

But as we approach a vote on Neil Gorsuch on the floor of the Senate, it is useful to remember that the tradition of the United States Senate has been to treat legislative matters and nominations differently.  

Filibuster to death legislation, yes.  Filibuster to death presidential nominations, no. 

Should the Gorsuch nomination come to the floor soon, as I believe it will, overwhelming Senate tradition requires that whether to approve it should be decided by a majority vote and that there should be no attempt by the minority to filibuster the nomination to death.