It's not unprecedented to filibuster cabinet nominees

As U.S. senators consider whether to filibuster former Senator Chuck Hagel’s nomination for secretary of Defense, they should not be deterred by the widespread myth that filibustering a cabinet-level nominee would be unprecedented. In fact, there have been several filibusters and attempts to invoke cloture (thereby ending filibusters) on cabinet-level nominations. Furthermore, many more Democrats than Republicans have cast votes to continue such filibusters – and such filibustering Democrats include current President Barack Obama and senior Obama Administration officials.

The Senate website defines a “filibuster” as an “informal term for any attempt to block or delay Senate action on a bill or other matter by debating it at length, by offering numerous procedural motions, or by any other delaying or obstructive actions.” By that definition, there have been many filibusters of cabinet-level nominees.

The most prominent manifestation of a filibuster is when a senator attempts to overcome a filibuster by a motion to invoke cloture, which limits further debate on the pending matter to 30 additional hours. To pass, cloture attempts require the support of three-fifths (usually 60 votes) of the full Senate.

Cloture was attempted successfully to end filibusters of the nominations of: Dirk Kempthorne for secretary of the Interior in 2006; Robert J. Portman for U.S. Trade Representative in 2005; Stephen L. Johnson for administrator of the Environmental Protection Agency (EPA) in 2005; Michael O. Leavitt for EPA Administrator in 2003; and C. William Verity for secretary of Commerce in 1987.  Every one of these nominees were chosen by Republican administrations and primary support for each filibuster came from Democrats in the Senate including, in some cases, current President Obama, Vice President Biden, and Secretary of State Kerry and former Secretary of State Clinton.

Further, a cloture attempt was withdrawn to end a filibuster of Hilda Solis, outgoing Secretary of Labor in the Obama Administration. And by unanimous consent, the Senate agreed to a 60-vote threshold (the same as required to overcome a filibuster) for confirmation of two other Obama Administration cabinet nominees – Kathleen Sebelius for secretary of Health and Human Services and John Bryson for secretary of Commerce.

So, coming back to the question of whether to filibuster the Hagel nomination, we see that not only are filibusters of cabinet-level nominees not unprecedented, there are several such precedents. An alternate anti-filibuster argument is that there has never been a successful filibuster of a cabinet-level nominee, but this claim is also false. It is difficult – if not impossible – to show that such a filibuster has never succeeded, given the broad definition of the term.  Several cabinet-level nominees have withdrawn following delays on consideration of their nominations.  John R. Bolton’s nomination by President George W. Bush to be U.S. Permanent Representative to the United Nations – a cabinet-level position under Presidents Clinton and Obama but not President Bush – also was not confirmed after a concerted, Democratic-led filibuster. Bolton received a recess appointment in 2005 and left office at the end of 2006 after the Senate again failed to act on his nomination.

The decision to filibuster any nomination, including a cabinet-level one, is not easy. But that decision must be based on facts, not myths, and despite myths to the contrary, a precedent for such filibusters does exist.

Bennett is on the board of Americans for a Strong Defense. He served 12 years in the U.S. Air Force and supported operations in Bosnia, Kosovo and Iraq.

---