Jeff Sessions today claimed that (1) he hasn't decided whether or not to filibuster Elena Kagan; (2) there was no filibuster against Sonia Sotomayor; (3) he and other Republicans are respecting the "Gang of 14" agreement to limit filibusters to what he calls "extraordinary circumstances," and (4) oh by the way, it's different now because with Scott Brown, we have 41 Republicans.
In other words, Sessions is trying to get credit for not filibustering except when the extraordinary circumstance exists of 41 votes against a nominee. Apparently, from the two stories I looked at, no reporter followed up with the obvious questions: would Sessions consider voting yes for cloture and no on confirmation? Would any Republican do so if there were 41 (or more) votes against confirmation?
Reporters are doing their readers and viewers a major disservice here; they're botching the story. Of course it's a filibuster.
OK, a little background. There have been only two cloture votes on judicial nominations during this Congress. On the nomination of David Hamilton, 29 Republicans including Sessions opposed cloture; 39 (including one, Hutchison, who missed the first vote) opposed confirmation. A second judicial nominee, Barbara Keenen, was confirmed by a unanimous vote after a unanimous cloture vote. But a bit more of a look reveals that the only judges getting confirmed are the ones that have no opposition. This year, every judge that's made it through has either passed in a voice vote, a unanimous vote, or with one dissenting vote, except for one: twenty Republicans opposed Thomas Vanaskie. Same thing last year: voice vote, unanimous vote, or tiny opposition (three no votes in one case), except for Hamilton and Andre Davis, who drew 16 no votes.
Now, one might conclude from this that judicial nominations are running smoothly because Republicans support Obama's nominees, but that would, of course, be wildly incorrect. There are numerous judicial nominations that have not yet reached the floor because they're blocked by a hold, which is ultimately just a promise of a filibuster. And with low-priority nominations (and bills), simply the threat to chew up floor time is sufficient to block a nomination, even if the Senators doing so don't have the votes to prevent cloture. In other words, a hold is a form of filibuster, and quite a few judicial nominees are being, and have been, filibustered.
Really, however, it's even more simple than that: as long as Republicans insist that it's a 60 vote Senate, then every nomination, and ever bill is being filibustered. To claim that it's a 60 vote Senate is to claim that the filibuster has been institutionalized, that it's the way the Senate always does business.
And that's historically brand new; it really never existed until 1993, and never existed in it's current, full, form until last year. It's the right of Republicans to act that way under Senate rules -- and I, for one, think it's not a terrible idea for judicial nominations to have to overcome serious hurdles, although I'm ambivalent about exactly what those hurdles should be. But the idea that anyone would take them seriously when they claim they're not filibustering is preposterous, and it's terrible journalism when reporters treat the claim with a straight face.