Sunday, June 20, 2010

Kagan is Being Filibustered

Nothing new here, but as long as Mitch McConnell continues to claim that there's some question about whether or not Republicans are using the filibuster against Elena Kagan, I might as well continue to point out that this is entirely phony and disingenuous, and the reporters really shouldn't play along.

Of course the Republicans are using the filibuster against Kagan.  What seems likely is that they don't actually have the votes to sustain a filibuster -- barring surprises, it appears that she'll be confirmed with more than 60 votes.  But they haven't abandoned their choice that everything must have 60 votes to clear the Senate.  If they had 60 votes against confirmation, they would also have 60 votes against cloture.  And if McConnell claims that Republicans haven't decided yet about a filibuster, the correct follow-up reporters should ask is whether he is considering voting yes on cloture and no on the nomination.  The answer, of course, is that he isn't. 

Kagan, or any other nominee, isn't going to be confirmed by a 53-47 vote.  If there were only 53 votes to confirm, then there would also be only 53 votes for cloture.  Or, if Democrats held the balance (as in the current Senate) and voted against confirmation and for cloture, they would be attacked by Republicans for casting a phony vote against her, with the "real" vote, the one on cloture, being the one that counted.  And all of that is true whether or not Republicans, having in fact only 38 or 35 votes against the nominee, force a cloture vote.  Of course they're using the filibuster against Kagan.  They've made it a 60 vote Senate, and they aren't going to make an exception for Supreme Court nominees.


  1. You've been at this theme for a while, and I still haven't seen you answer a basic question: what evidence do you have that they intend to use the filibuster against Kagan?

  2. Throughout this Congress, they've acted as if it takes 60 votes for anything to happen in the Senate; they've said that it takes 60 votes for anything to happen in the Senate. Why would this be any different? Of course they're going to require 60 votes for Kagan to get through. That's a filibuster.

    They're playing a semantics game, and I don't think the press should play along.

  3. I don't think you actually answered Kylopod's question. Instead, you just sort of repeated your assertion. And by "sort of" I mean "you just repeated your assertion."

    The claim, "If Kagan only had 53 votes the Republicans would filibuster her nomination" is not the same claim as "Republicans are refusing to let a vote take place on her nomination," which is what "Kagan is being filibustered" would generally be taken to mean by anybody _not_ playing a semantics game. I'm not sure why you think the media is supposed to report a prediction about what might happen in a hypothetical situation, rather than what is actually happening.

    (Given that the Democrats have 59 give-or-take senators, if she only got 53 votes it would be a sign that there was a good reason to filibuster.)

    My guess is that McConnell is simply being strategic at this point, refusing to concede anything because (a) as a negotiating posture, "You win" isn't a good opening gambit; (b) if something devastating does come out (as unlikely as that is) he looks foolish for having given in so early; and most importantly (c) "This debate is over" isn't exactly a good way to attract press coverage, whereas "Wait and see" keeps them coming back for more.

    But setting my guess aside, I think any normal interpretation of McConnell's words is "I doubt the GOP will make any concerted effort to stop her. There may be some rogue Republican senators out there who intend to try to block a vote, but the party has no intention of supporting it. Leadership is not going to try to round up 41 votes or put pressure on anyone to vote against cloture."

  4. David,

    (And welcome to Plain Blog; veterans are always especially welcome. Well, except for one, I guess).

    I think it's fair to say that the leadership isn't going to (at this point) make any, as you say, concerted effort to stop her -- because they don't have the votes. But "the votes" for McConnell on this means 41, not 51. If circumstances change and Republicans have 41 no votes, then they'll use them to win their filibuster. If not, they'll lose their filibuster (whether or not they force a cloture vote). I don't think that's speculative at all that the Dems need 60 votes; Republicans have repeated said that it's a 60 vote Senate, and acted as if it's a 60 vote Senate.

    What you're doing in the top paragraph here (and what McConnell is doing) is trying to restrict "filibuster" to *successful* filibuster. By that standard, Strom Thurmand's record stand wouldn't count as a filibuster, since he did not actually block a vote, in the end. Nowadays, filibusters are defeated by cloture, not by attrition. That's what will be needed to confirm Kagan, and therefore it's a filibuster.

  5. What I really want to know is whether there's been a bill, since Obama took office, that passed with fewer than 60 votes. If none have, that would support your assertion that the Republicans are filibustering everything they can. I do agree that they're being unusually obstructionist, but I think they're a bit more subtle about it than you seem to imply.


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