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Show Hingkley Journal of Politics 2006 Figure 5 Percentage of nominations pending at end of Congressional session, U.S. District Courts Congressional Session * Presidential Beotion Year Figure 6 Percentage of nominations pending at end of session, U.S. Circuit Court of Appeals Congressional Session * Presidents Beotion Yea- "Dilatory or obstructive" tactics to prevent a floor vote Vary depending on whether government is "divided" (when the president and the Senate majority are of different parties) °r "unified" (when the president and the Senate majority are °f the same party). In times of "divided government", the Majority party may prevent a floor vote by never allowing the Nominee a committee hearing or never placing the nominee °n the floor agenda5 to receive a confirmation vote. In times °f "unified government", the minority party does not have the sarrie options as the majority does in "divided government" to Prevent a nominee from receiving a floor vote. If they choose to prevent a nominee from receiving a floor vote, they must do it by extending debate on the nominee when he or she has a'ready been placed on the Senate floor vote agenda. This practice of the minority extending floor debate to a judicial nomination has generally been the only practice specifically categorized as a judicial filibuster. Georgetown law professor Mark Tushnet explains why this is: ^e Senate Majority Leader has traditionally set the agenda for Senate floor votes and so may choose to never place an unwanted Nominee on that agenda. There's a difference between the use of a filibuster to derail [a judicial nomination] and the use of other Senate rules, on scheduling, on not having a floor vote without prior committee action, to do so etc. All those other rules... can be overridden by a majority of the Senate...whereas the filibuster can't be overridden in that way. A majority of the Senate could ride herd on a rogue Judiciary Committee chair who refused to hold a hearing on some nominee; it can't do so in respect to the filibuster (Cornyn, 2004, p. 221). However, while the "other Senate rules" of which Tushnet was referring (refusing to allow hearings, refusing to place on Senate agenda etc.) are not categorized as true filibusters, it is important to note that they are a key piece to the current day's judicial confirmation puzzle. Both the majority preventing nominees from receiving a hearing or leaving them in committee in times of "divided government", as well as the minority extending debate on nominees in times of "unified government", have been practiced more regularly in recent years. During the Clinton administration, six years of Republican Senate control ("divided" government) led to 66 of Clinton's district court and 38 circuit court appointments never receiving a floor vote. Putting this in perspective, only 103 district court and 32 circuit court nominations did not receive floor votes in the previous 16 years (H.W. Bush, Reagan, Carter) (Congressional Research Service, 2003b, p. 18). Clinton also received the highest percentage of judicial nominations being rejected in over 70 years (see Figure 4). Likely as a retaliation measure, Democrats, who were in the Senate minority for two and a half years of George W. Bush's first term ("unified" government), used filibusters to prevent ten of Bush's first term judicial nominations from receiving a floor vote. Bush also received an abnormally high rejection rate of judicial nominations (see Figure 4). Both Republicans using obstructive tactics in time of divided government in the 90's and Democrats using filibusters in time of unified government in the 21st century have effectively lowered the overall number of judicial nominations receiving floor votes. Figures 7 and 8 (Congressional Research Service, 2003b, p. 32) display this pattern: Figure 7 Percentage of nominations receiving floor votes, U.S. District Courts, 1977-2003 1977- 1979- 1981- 19B3- 1986- 1967- 1969- 1991- 1993- 1995- 1997- 1999- 2C01- 2003-1978 1980 1982 1984 1986 1968 1990 1992 1934 1996 1996 2000 2002 2004 65 |