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US Senate : Filibuster In 2005

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4 August 2005

US Senate Republican leadership has publicly decried Democrat efforts to block Presidential nominations that require Senate approval. Senate leadership threatens to invoke a "nuclear option" which would ban the minority from blocking judicial nominees.

Some news reports have characterized the filibuster, a historical method used to delay vote or block debate, as unconstitutional, unfair, a historical relic. Others report that it is a tool that protects the rights of the minority against the tyranny of the majority.

By their nature, filibusters elevate visibility and have, as a by-product, the potential to inspire compromise. A final vote can only be taken if 60 Senators agree; this is called a vote of cloture (vote to end the filibuster).

According to the non-partisan Congressional Research Service (CRS), cloture votes to end a filibuster were held on 14 appeals court nominations from 1980 to 2000.

However, the filibuster is only one way that Senators can block a vote. For example, Judiciary Committee Chairman Orrin Hatch (UT) bottled Clinton judicial nominees "in committee" -- effectively denying them a vote on the Senate floor. The Judiciary Committee uses "blue slips" to obtain home state Senator opinion on the nominee; Hatch required two yes votes for Clinton nominees, but only one for Bush. (cite1, cite2)

Democratic senators filibustered 10 of President Bush's 229 first-term judicial nominees; this confirmation rate exceeded other first-term presidents since 1980. (cite)

The Senate is the upper house of the Congress of the United States. It is comprised of two senators (100 members) from each state. Senators serve six-year terms, with one-third being elected each election cycle.

The Senate has sole authority to ratify treaties proposed by the president and the sole power to accept or reject presidential nominees for federal courts (judges, including the Supreme Court) and cabinet members.

Latest Developments

The Senate has a process in place for amending rules; this process requires a two-thirds [67] vote. According to Congressional Quarterly, from 1919-1971, there were nine filibusters relating to Rule 22; in each case, there were insufficient votes to invoke cloture.

The "nuclear option" which Republican leaders are threatening is actually a series of steps designed to bypass the two-thirds vote requirement to change rules: (cite)
  1. The Senate moves to vote on a controversial nominee.
  2. At least 41 Senators call for filibuster.
  3. Majority Leader Frist raises a point of order, saying debate has gone on long enough and that a vote must be taken within a certain time frame. (Current Senate rules requires a cloture vote at this point.)
  4. Vice President Cheney -- acting as presiding officer -- sustains the point of order.
  5. A Democratic Senator appeals the decision.
  6. A Republican Senator moves to table the motion on the floor (the appeal).
  7. This vote - to table the appeal - is procedural and cannot be subjected to a filibuster; it requires only a majority vote (in case of a tie, the Vice President casts the tie-breaking vote).
  8. With debate ended, the Senate would vote on the nominee; this vote requires only a majority of those voting. The filibuster has effectively been closed with a majority vote instead of a three-fifths vote.

Background

According to the US Senate website , the word filibuster -- derived from a Dutch word meaning "pirate" -- was first used more than 150 years ago to describe "efforts to hold the Senate floor in order to prevent action on a bill."

Rule 22
The filibuster is related to "cloture," a rule adopted almost 100 years ago two-thirds vote. At times this was two-thirds of those voting; for a limited time, it was two-thirds of membership.

In 1975, the Senate reduced the number of votes needed to invoke cloture to three-fifths (60) of Senate membership. At the same time, they made the filibuster "invisible" by requiring only that 41 Senators state that they intend to filibuster; critics say this makes the modern filibuster "painless."

Historical Timeline
  • 1841: Henry Clay "threatened to change Senate rules to allow the majority to close debate" when Democrats blocked a bank bill.
  • 1872: Vice President Colfax ruled that "under the practice of the Senate the presiding officer could not restrain a Senator in remarks which the Senator considers pertinent to the pending issue."
  • 1919: First use of Rule 22 when Senate invoked cloture to end debate against the Treaty of Versailles.
  • 1935: Huey Long (LA) filibustered for 15 hours and 30 minutes trying, without success, to keep Senatorial oversight of National Recovery Administration's senior employees.
  • 1957: Strom Thurmond (SC) set a filibuster record -- 24 hours and 18 minutes -- part of a move that successfully blocked the Civil Rights Act of 1957.
  • 1964: Robert Byrd (WVA) filibustered for 14 hours and 13 minutes in an unsuccessful attempt to block the Civil Rights Act of 1964.
  • 1968: The Abe Fortas appointment to succeed Earl Warren as Chief Justice of the Supreme Court was derailed by Republicans through filibuster.
  • 2000: Majority Leader Bill First voted against cloture (85-14) on the Richard Paez nomination to the Ninth Circuit; he was confirmed ( 59-39).
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