Senate Democrats Block Vote on Clinton Judicial Nominee
On cloture votes and filibusters
Perhaps the most peculiar Senate action on a judicial nomination by Bill Clinton occurred on September 21, 1999. For only the second time in the Senate’s history, a cloture vote on a lower-court judicial nomination failed to get the votes needed to move to a final vote on confirmation. What is especially odd is that it was Senate Democrats who blocked cloture on Clinton’s nominee and thus prevented the Senate from voting to confirm the nomination.
Let’s take a look at what happened, and why, to Clinton’s nomination of Brian Theadore (“Ted”) Stewart to a federal district court seat in Utah. (Yes, that unusual spelling of his middle name is correct.) We can then address when a defeated cloture vote amounts to a filibuster.
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As we have seen, Senator Orrin Hatch (for whom I worked during much of Clinton’s first term) was Clinton’s most important Republican ally on judicial nominations. He paved a smooth path for the confirmations of Ruth Bader Ginsburg and Stephen Breyer to the Supreme Court. Even after he became Judiciary Committee chairman in 1995, he remained committed to giving broad deference to Clinton’s judicial nominees, and he took a lot of heat from his fellow Republicans for doing so.
So when a district-court seat opened up in his home state of Utah, Hatch saw an opportunity to have his goodwill reciprocated. Ted Stewart was a friend of Hatch’s. He worked briefly for Hatch in 1980, was chief of staff for a House Republican from Utah, and had then held positions in state government in Utah for more than a decade. He was chief of staff to another Utah Republican, Governor Mike Leavitt, when Hatch persuaded Clinton to nominate him to the district-court seat.
Clinton nominated Stewart on July 27, 1999. Hatch raced Stewart’s nomination through the Judiciary Committee. He had his confirmation hearing two days after he was nominated, and the committee reported his nomination to the Senate floor that very day. Hatch then pushed for his prompt confirmation by the full Senate.
Senate Democrats were not happy with the priority that the Stewart nomination was being given, especially as many of their preferred nominees were stalled. For example, Richard Paez had been nominated to the Ninth Circuit in January 1996, and Marsha Berzon had been nominated to that same court in January 1998. Stewart had also leapt past lots of district-court nominees in the home states of Democratic senators. So Democrats refused Hatch’s request that the Senate act on Stewart’s nomination.
Hatch therefore moved for cloture on Stewart’s nomination. (A motion for cloture, if adopted, sets up a matter for an up-or-down vote.) In order to pass, the cloture motion needed 60 yes votes. But it received only 55 votes, as every Democrat but one (Daniel Patrick Moynihan of New York) voted against it.
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Did Senate Democrats filibuster Clinton’s own nominee? The answer to that question depends on what the term filibuster means. The term is susceptible of a range of meanings, but in the context of cloture votes on nominations I think that it is most sensibly limited to defeating a cloture vote for the purpose of preventing a nomination from ever being confirmed.
The Democrats’ goal was not to defeat or prevent Stewart’s nomination. It was, rather, to spur Republicans into allowing votes on other pending nominations. And that’s exactly what they achieved, though not to the extent they hoped for.
In the aftermath of the failed cloture motion, Senate majority leader Trent Lott and minority leader Tom Daschle agreed to up-or-down votes in early October on Stewart and two other nominees. (Neither Paez nor Berzon was part of the package, but another Ninth Circuit nominee, Raymond Fisher, who had just been nominated that spring, was.) The Senate confirmed Stewart by a vote of 93-5, with the five dissenting senators evidently still disgruntled by the favorable treatment that Stewart received.
For similar reasons, the one previous instance of a negative cloture vote on a lower-court nomination would also not qualify as a filibuster. In 1984, a cloture motion on Ronald Reagan’s nomination of J. Harvie Wilkinson to the Fourth Circuit fell three votes short of the sixty-vote threshold, amidst arguments by some Democratic senators that further investigation into allegations against Wilkinson was necessary. Wilkinson returned to the Judiciary Committee a week later for a second hearing, and two days after the hearing a second cloture motion prevailed by a vote of 65 to 32. He was then confirmed by a vote of 58 to 39. So although one is entitled to be suspicious of claims by senators that a delaying measure is only for the purpose of getting more information, the senators who changed their votes to yes on the second Wilkinson cloture motion validated their claims.
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Deliberately or otherwise, some folks have wildly mischaracterized the mere filing of a cloture motion as a potent sign of a filibuster. In a report on cloture attempts on nominations, the Congressional Research Service emphasized in a heading that “Cloture Motions Do Not Correspond With Filibusters”:
Although cloture affords the Senate a means for overcoming a filibuster, it is erroneous to assume that cases in which cloture is sought are always the same as those in which a filibuster occurs. Filibusters may occur without cloture being sought, and cloture may be sought when no filibuster is taking place. The reason is that cloture is sought by supporters of a matter, whereas filibusters are conducted by its opponents.…
For [various] reasons [that the CRS report spells out], it would be a misuse of the following data, which identify nominations on which cloture was sought, to treat them as identifying nominations subjected to filibuster. [Pp. 2-3 (emphasis added).]
Back in 2013, the Washington Post’s Glenn Kessler awarded three Pinocchios to extravagant claims that every cloture motion filed by Democratic Senate majority leader Harry Reid counted as a Republican filibuster. As Kessler explained, Reid “often files cloture on multiple bills or nominations at once to speed things along even if no one is slowing things down.” (Emphasis added.)
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Four years after defeating cloture on Stewart’s nomination, Senate Democrats would launch an unprecedented campaign of filibusters against George W. Bush’s judicial nominees. Ironically, as future posts will explain, that campaign would in the end produce a conservative majority on the Supreme Court.