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Hagel delay the latest evolution in 45-year filibuster tradition

With the Senate falling short Thursday of the 60 votes needed to move to a confirmation vote on defense secretary nominee Chuck Hagel, Majority Leader Harry Reid was correct in claiming that never before had the Senate had a cloture vote on a nominee to run the Defense Department.

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But it’s not unprecedented for the Senate to have cloture votes on other presidential nominations – from ambassadors to judges.

The Senate changed its rules in 1949 to allow cloture motions on nominations, but cloture wasn’t sought on a nomination until 1968. From that year until March of 2012 cloture was sought on 99 nominations, including some well-known nominees:

  • Abe Fortas to be chief justice in 1968
  • William Rehnquist to be an associate justice of the Supreme Court in 1971 and to be chief justice in 1986
  • John Bolton to be ambassador the United Nations in 2005
  • Ben Bernanke to be chairman of the Federal Reserve in 2010
  • Richard Cordray to be head of the Consumer Financial Protection Bureau in 2012.

But not in every case of a cloture vote is there a prolonged debate on the nomination which ties up the Senate for days – in fact, in most cases there isn’t.

A cloture vote, if successful, allows a final up-or-down vote on confirming the nominee, after up to 30 more hours of debate. For confirmation, a simple majority is usually, but not always, all that is needed.

The decision to seek a cloture vote is in the majority leader’s hands and he can time cloture votes not merely to push forward a nomination and get a vacancy filled, but to paint the nominee’s opponents as obstructionists.

Reid and previous Senate leaders have used cloture votes to drive political messages and to generate enthusiasm among their party’s base.

Case in point: Miguel Estrada, President George W. Bush’s nominee to the federal appeals court in the District of Columbia. Senate Majority Leader Bill Frist insisted on seven separate votes on cloture on the Estrada nomination in 2003.

Each of them failed, but they hammered home that Reid and the Democrats were blocking a nominee whom Republicans thought was amply qualified and who happened to be a Latino immigrant.

“This is a dark moment, I believe, in the history of the United States Senate,” Frist said after the final vote on Estrada failed and the nominee withdrew.

Senators, Frist said “have been denied a very, very basic right” to vote on the nominee and “Miguel Estrada has been denied the opportunity to be considered by this body by a single up-or-down vote, whereby individual colleagues could vote either for or against a brilliant, a qualified nominee, all because of the obstruction of a few.”

More than a few: 43 Democrats, including Reid, voted against cloture on Estrada.

After Reid filed the cloture motion on Wednesday, Republicans denied that they really were stalling Hagel’s confirmation by a filibuster.

“What we are doing is not a filibuster,” Sen. Jim Inhofe, R- Okla., said Wednesday on the Senate floor. “We are seeking a 60 vote threshold for a controversial nomination. If the majority really wanted to move forward quickly, all they have to do is agree to a 60-vote margin, like they did with the (Kathleen) Sebelius and (John) Bryson nominations.”

When President Obama nominated Sebelius to head the Department of Health and Human Services in 2009, Republicans and anti-abortion groups delayed her confirmation, partly due to her understating the amount of campaign contributions she had received from a Kansas abortion doctor, Dr. George Tiller, and partly due to her veto, as Kansas governor, of a bill to impose new limits on abortion providers.

In the negotiations over Sebelius, Reid and Senate Republican Leader Mitch McConnell agreed to 60-vote threshold on confirmation – a procedure they could use in Hagel’s case as well.

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Inhofe contended that, “A 60-vote margin is not a filibuster. We are merely saying the Senate is entitled to this information” -- on speeches that Hagel had given in the past few years.

The term “filibuster” evokes images of actor Jimmy Stewart holding the Senate floor until he collapses from exhaustion in the film Mr. Smith Goes to Washington. And there have been famous single-senator filibusters: Sen. Strom Thurmond holds the record of 24 hours and 18 minutes in opposition to a civil rights bill in 1957.

But by the time the Senate voted on cloture Thursday there had been only two days of intermittent floor debate on Hagel’s nomination – with discussion of the defense secretary nominee interspersed with unrelated speeches on global climate change, the Keystone XL Pipeline, kidney transplants, whether certain sites in Plaquemines Parish, La. should be units of the National Park System and various other topics.

Whether those two days of intermittent debate were or weren’t a filibuster, congressional expert Sarah Binder who teaches political science at George Washington University said the Hagel debate “represents a significant change in the Senate's practice of advice and consent.  The issue here is the target of the filibuster-- an appointment to the president's ‘inner cabinet.’ My sense is that there has generally been a strong degree of deference to the president over his appointments to the executive branch-- particularly over the choice of his top appointments to State, Treasury, Justice, and Defense.”

Binder said, “I don't think we should be surprised to find partisan polarization seeping over into these top confirmation battles. Partisanship has spread almost everywhere else in the Senate.”

In the past filibusters and cloture votes were not always an essential part of delaying a nominee.

In the case of John Tower’s nomination to be defense secretary in 1989, President-elect George H.W. Bush announced his nomination in December of 1988, but it was not until March of 1989 that Tower was defeated – not on a cloture vote but on a confirmation vote. The vote came after six days of Senate floor debate.

Tower’s ally Sen. John McCain, R- Ariz., denounced the delay: “I have a large problem with the scenario that we won’t vote until every single allegation that comes over the transom is investigated.”

Of all people, Reid knows how effective the threat of a filibuster can be: he was Senate minority whip in 203 and 2004 when Democrats successfully blocked confirmation votes on ten Bush appeals court nominees, including Estrada.

That Democratic filibuster effort won applause from progressive groups. “For months, Senate Democrats have been heroically holding out against President Bush's nominations of extremist judges to America's most powerful courts,” told its supporter in 2003.

Citing Estrada’s withdrawal, said, “Our campaign to stop Bush's extremist nominees has been extraordinarily successful so far.” Estrada’s defeat “was a major victory -- the first time Bush has conceded defeat on any nomination.”

Now for some progressive groups, the delay in Hagel’s confirmation makes the case for changing Senate rules to further limit filibusters.

In a statement Thursday night, George Kohl, Senior Director at the Communications Workers of America, a union that contributed heavily to Democratic candidates in 2012, said, “A real Senate reform package would have made the obstructionists hold the floor and keep 41 of their colleagues with them over a holiday weekend.” Kohl added “the Republicans in the Senate remain intent on breaking new ground in Senate obstruction,” and “Senate Democrats who worked to scuttle more substantial reforms have forfeited their right to complain.”