Right-Wing Judicial Groups Can’t – or Won’t – Get the Record Straight

The Committee for Justice and the Judicial Confirmation Network make two related and badly mistaken assertions in their releases wrongly attacking People For the American Way for “mischaracterizing” and “misrepresenting” a Congressional Research Service (CRS) report on filibusters of nominations: 1) that a filibuster “by definition” only occurs when a cloture vote fails; and 2) that CRS or anyone else agrees with their definition.

Since at least 1806, individual Senators have been able to use extended speeches or other dilatory tactics to delay or block a final vote on a nomination or legislation. These tactics constitute the use of a filibuster. Some filibusters are successful, some are not. By attempting to narrow the definition to only successful filibusters, CFJ and JCN are consciously trying to rewrite history.

Indeed, there appears to be a pattern and practice here. Committee for Justice has made similar mistakes before. In a February 28th memo, C. Boyden Gray incorrectly asserted that it was impossible to wage a filibuster against a nomination prior to 1949,¹ when in fact until 1949 the Senate had no mechanism to end a filibuster of a nomination without unanimous consent.

PFAW, like virtually everyone else who writes or talks about the filibuster, does not adopt CFJ and JCN’s overly narrow definition and instead focuses on the tactics used and the intent of the Senators using the tactics. For example, the CRS in the very same report that CFJ and JCN cite states:

“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 dilatory actions for such a purpose is a filibuster.”²

But it isn’t just CRS that disagrees with CFJ and JCN. The Harvard Journal of Law and Public Policy article written by Martin Gold and Dimple Gupta relied upon by proponents of the nuclear option states merely voting against cloture constitutes a filibuster by that Senator, in addition to other tactics:

“[A] filibuster can take many forms, including placing a hold on a bill or nomination, refusing to report a bill or nomination out of committee, objecting to unanimous consent agreements that would allow the Senate to proceed, being absent during quorum calls to prevent the Senate from obtaining a quorum to do business, and voting against cloture.” ³

Furthermore, then Senate Majority Leader Bob Dole, speaking on the Senate floor, used examples of past unsuccessful filibusters of nominations during the successful GOP filibuster of Henry Foster to be U.S. Surgeon General in 1995:

“Yes, supporters of the nominee must obtain 60 votes. That is the way it works. I have had the Congressional Research Service do a little work in that area. I have heard people say, “Oh, this never happened before.” It has happened a lot. I voted. Let me just give you a little information here. Sometimes facts may not be important, but they are nice to have in the record…”
“Since 1968, 24 nominations have been subjected to cloture votes. So there have been plenty of precedents for cloture proceedings on nominations. In 1980, as the Senator from Massachusetts will recall, the nomination of Stephen Breyer to the Circuit Court of Appeals was subject to a cloture vote because of Republican concerns. Cloture was invoked, and the nomination was confirmed. I voted aye on cloture, and I voted aye on the nomination.” ⁴

Finally, CFJ and JCN take out of context the very quotes from the CRS report that they use to “prove” that PFAW mischaracterized the report. Below the entire excerpt is reproduced.

“It would be incorrect to assume that situations in which cloture is sought correspond completely with those in which filibusters occur. Even if opponents attempt to block a nomination through delaying tactics, supporters may decide not to move for cloture. This situation is perhaps uncommon today, but does seem to have occurred in relation to nominations. Conversely, supporters of a nomination may move for cloture, in order to speed action, even when opponents may not consider themselves to be conducting a filibuster against it, or when they may have only threatened, but not actually conducted, a filibuster.

“Since filibusters may be conducted through a variety of tactics, there are no specific actions that definitively indicate the occurrence of a filibuster, much less of a mere threat to filibuster. To this extent, the presence of cloture attempts may at least be a readily available means for attempting to identify some cases in which filibusters may have occurred.” ⁵

It is clear that CRS is saying that using cloture votes as an indicator of whether a filibuster occurred can actually be under inclusive. This is because, unlike with legislation, there is no procedural reason to file cloture on a nomination except to bring the nomination to a final vote. However, sometimes nominations are filibustered without cloture being filed. Indeed, as discussed above, it was impossible to file cloture before 1949.

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1. C. Boyden Gray Memorandum to Journalists on the nuclear option.
2. Congressional Research Service Report RS20801, “Cloture Attempts on Nominations”, December 11, 2002, p. 1.
3. Martin B. Gold, Dimple Gupta, The Constitutional Option to Change Senate Rules and Procedures: A Majoritarian Means to Over Come the Filibuster, Harvard Journal of Law and Public Policy, Volume 28, Issue 1 (2004), at 211.
4. Statement of Senator Robert Dole, Congressional Record of June 21, 1995 at S8743-44.
5. CRS report at 2.