Thursday, June 24, 2010

C'mon, Reporters: Of Course It's a Filibuster

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. 


  1. I'm coming at this a bit late from a later post of yours, having now read all your recent posts on this topic.

    Perhaps I'm misunderstanding something, but I think you're discounting the different politics of a SCOTUS nomination. It's valid to say that "filibuster" should not be taken to mean "successful filibuster" and I get your point there. But it's also valid to ask the following: assuming the Republicans could get all 41 of their caucus members to vote no on cloture (which I think is not the case with Kagan's nom) would they actually do it?

    I think the answer is likely no, meaning it's not just that Collins, Snowe, and whomever else have signaled they would not vote against cloture (probably they have), it's that the GOP leadership wouldn't even want to make an effort to do that with a nominee like Kagan who, by an objective measure, is hardly a raging lefty ideologue.

    The fact that "Republicans insist that it's a 60 vote Senate" (which sucks) does not mean that will apply to every single situation, and surely you can see that SCOUTS noms are perhaps the most likely to be an exception. The president is generally felt (by Americans and by many Senators) to have a great deal of latitude when it comes to appointing SCOTUS judges, and unlike with lower court nominees average Americans are actually kind of paying attention to the process and many would frown on a party that would deny a president's nominee the right to an up or down vote.

    As such, actually attempting to filibuster a nominee who does not look awful is quite politically risky and might alienate more centrist voters. I just don't think you can automatically apply the "60 vote senate" logic to the Kagan nom, and while I agree with you that a filibuster need not be successful to be "in effect" so to speak, I'm not at all that the GOP would have an interest in even trying

  2. Well, I guess what I'd say is that at least some Republicans clearly don't want to be seen as filibustering a nominee if they don't have the votes to win, since they're saying that they won't filibuster (or that they might filibuster). And there's obviously no way for me to prove that a 55-45 win is impossible these days...I can point to everything else, but I can't prove that it would apply to SCOTUS confirmation. Actually, that's why I phrased this as a request to reporters -- they could push Republicans about this, and while they might not get a real answer, they could at least not accept what I think is a phony claim without the obvious follow-ups.

  3. I definitely agree with that--reporters should indeed be pressing on this issue.


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