According to Article II, Section 2 of the U.S. Constitution, the President of the United States "shall appoint" federal judges, who are confirmed "by and with the Advice and Consent of the Senate." For more than 200 years, this has meant that the Senate debates and votes by simple majority to confirm the President’s appointments to the federal bench.
The 108th Congress, or the current Senate, is the first in history to witness simultaneous filibusters on multiple nominations to the federal judiciary.
While the Constitution does not refer to a "filibuster," it does say that "Each House may determine the Rules of its Proceedings," in Article I, Section 5. The Senate has used this power to create Standing Rule XXII, which is often known as the "Cloture Rule" or "Filibuster Rule," because it allows a minority of the Senate to prevent a final up-or-down vote by mustering 41 votes against ending debate.
There were only 15 cloture votes taken on judicial nominations in the more than 200 plus years prior to the beginning of the 108th Congress in 2003. Of these 15 cloture votes, only four failed and only one nominee failed to be confirmed (the nomination of Abe Fortas to be Chief Justice of the U.S. Supreme Court). In the case of each of the other three failed cloture votes, the judicial nomination was confirmed.
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"If I am such a genius why am I drunk, lost in the desert, with a bullet in my ass?" -Otto Mannkusser
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