People For the American Way

The GOP’s Post-Cloture Obstruction: Nothing Changes

Under Senate rules, after a filibuster has been broken by a successful cloture vote, a single senator can still delay an actual yes-or-no confirmation vote for as long as 30 hours. That 30-hour wait can be eliminated, but only if all the senators agree. So when the Senate invoked cloture on Nina Pillard’s nomination to the DC Circuit Tuesday evening, Republicans immediately set about delaying her confirmation up to about 1:00 am Thursday morning. National Journal reports that McConnell has no intention of giving back any of that time, and that Republicans are “plotting a talkathon.”

But the National Journal report makes a serious factual error when it says:

Before the rules change, Minority Leader Mitch McConnell would probably have agreed to yield back time. Now? Not so much.

While Senate Republicans may want Americans to believe that, a quick look at the record shows it isn’t so. We can look at other times (before the rules change) that Democrats successfully invoked cloture on a circuit court nomination to see if the GOP yielded their right to force the Senate to wait 30 hours before holding a confirmation vote.

It turns out there are only four examples where Democrats were able to successfully break the Republican filibuster of an Obama appeals court nominee with a cloture vote, and in only one of those cases did Republicans agree to immediately allow an up-or-down confirmation vote.

In two of those cases, confirmation votes took place two days after the cloture vote, even though in one instance almost every Republican supported the nominee. The Senate invoked cloture for David Hamilton to the Seventh Circuit by a 70-29 vote on November 17, 2009, but his confirmation vote (59-39) was not held for another two days. And cloture for Adalberto Jordán, nominated to the Eleventh Circuit, was invoked by an 89-5 vote on February 13, 2012, but he had to wait two days before his 94-5 confirmation vote.

The only time there was a contested cloture vote for a circuit court nominee and Republicans yielded back the time, allowing a relatively prompt yes-or-no vote, they did so by accident. That was for the nomination of Andrew Hurwitz to the Ninth Circuit. The Senate invoked cloture on Hurwitz’s nomination in a 60-31 vote at the end of the day on June 11, 2012, and he was confirmed the next morning by unanimous voice vote. After the vote, senior Judiciary Committee Republican Chuck Grassley claimed that he had not meant to let the vote go forward and did not know that this would happen, or he would have objected in order to prevent the needed unanimous consent. (He also listed 39 Republicans who would have voted against confirmation.)

There was one time when Sen. McConnell and his caucus did agree to yield back the time after a circuit court nomination cloture vote, as National Journal suggests was the norm. On March 2, 2010, the Senate voted unanimously for cloture on Barbara Keenan’s nomination to the Fourth Circuit and confirmed her 99-0 the same day.

So before the recent rules change, would McConnell likely have agreed to yield back time for a nominee who Republicans had pulled out the stops to obstruct? Don’t bet on it.


Adalberto Jordan, Andrew Hurwitz, Barbara Keenan, cloture votes, D.C. Circuit, D.C. Circuit Court of Appeals, David Hamilton, Eleventh Circuit Court of Appeals, Filibuster, Fourth Circuit Court of Appeals, judicial nominations, Lower Federal Courts, Mitch McConnell, Nina Pillard, Ninth Circuit Court of Appeals, Seventh Circuit Court of Appeals