Yes, There Was A Filibuster on Berwick

Jonathan Cohn gets and posts a comment from Tevi Troy, a Bush-era  HHS Deputy Secretary and White House staffer, criticizing the recess appointment of Don Berwick:

[T]he Republicans had not filibustered or obstructed this nomination before the recess took place, largely because they wanted to have a chance to question Dr. Berwick on his controversial views.   If the Republicans had filibustered Dr. Berwick or held back the nomination after a hearing and after he had answered all of the Senate's written questions and President Obama had then recessed him, I know that I wouldn't have raised any objections.

To which Kevin Drum replies:

I agree with this argument in theory.  The problem I have with it is that it implicitly requires us all to pretend to be idiots who don't pay attention to the actual way that actual politics works these days. Republicans haven't filibustered Berwick yet? Of course not, but does anyone care to place cash money on them not doing it?...

The Republican Party has made it pretty clear that they're only willing to hold real hearings and allow real votes on high profile nominees that the press and the public actually pay attention to: cabinet positions and Supreme Court nominees. 

Almost.  What's actually happening is that (1) they're insisting on 60 votes for everyone, cabinet positions and Supreme Court nominees included.  What they can't do is guarantee that all 41 Republicans will oppose everything; in fact, most nominations are not controversial, even now, and are approved by voice vote, unanimous vote, or overwhelming vote.  They aren't forcing an actual cloture vote on very many nominations, but that's basically a technicality; no one is going to get confirmed with 55 votes, and probably not with 59 votes.   They're also (2) delaying and drawing out the confirmation process even on noncontroversial nominations (defined as nominations that eventually receive confirmation by unanimous or near-unanimous vote).  They aren't employing every single form of delay against every nomination (far from it), but they are doing quite a bit of it.

Add it up, and the answer is that Republicans are filibustering every single nomination.  They aren't doing that with 100% participation...it's probably somewhere north of 25 and south of I think) 35 Republicans following that strategy.  Consequently, they basically don't have the votes to eventually block cloture.  However, insisting on not only enough votes to win a cloture vote, but also other foot-dragging "rights" of Senators, is a filibuster.  That is, simply saying that it's a 60 vote Senate, at least if it's backed up (as it is) by action, is tantamount to announcing a filibuster on everything. 

I do agree with Troy that there are costs to recess appointments; I agree, also, that I'd rather not see them employed in cases in which there is no filibuster.  Since in fact the Republicans (although not necessarily 41 of them) were filibustering, I continue to believe that the president is well within his rights, and in fact should use his recess appointment power in order to maximize his other goals.  If Republicans don't like it, they should stop filibustering everything.