This is ridiculous. Republicans are claiming that they haven't decided whether to filibuster Elena Kagan's nomination to the Supreme Court, and reporters are playing along (via Sargent).
I've been over this before...
Hey, reporters! Do you really think there's any chance that Kagan will be confirmed by a 53-47 vote? If 47 Senators oppose her, is there any realistic possibility that they will vote yes on cloture and no on confirmation? In fact, is it very likely that she could even be confirmed 59-41? If not, then it is a filibuster. It may not be -- by all accounts, it probably won't be -- a successful filibuster. It may turn out that, not having the votes, Republicans will not force a cloture vote. But it's a filibuster, all right.
Remember, without a filibuster, a nomination only needs a simple majority (of those voting) to be confirmed. Any talk of 60 votes is filibuster talk. That's how filibusters are conducted now...not by reading recipes on the floor of the Senate, but by insisting -- by acting as if -- 60 votes are required. They are not, except in cases of filibuster. Such as the current one, against the nomination of Elena Kagan.