Bench Memos

Dana Milbank’s “Filibuster” Folly

In his Washington Post column today, Dana Milbank contends that Republicans “filibustered” the confirmation vote on Eleventh Circuit nominee Adalberto Jordan and that the “filibuster was broken Monday night (by a lopsided 89-5 vote).” This assertion is part of Milbank’s broader argument that Senate Republicans are mistreating Hispanics and that they “roughed up” Jordan by allowing Senator Rand Paul to delay his confirmation vote to today. That two-day delay amounts to a “unique humiliation,” contends Milbank.

A few points to clarify Milbank’s confusion:

1. The term “filibuster” is generally reserved for defeat of a cloture vote as part of a broader effort to block confirmation of a nominee (or passage of legislation). There are, of course, various other means by which senators of both parties obstruct a nominee’s path to confirmation. But those other means are not usually conflated with the filibuster.

The Senate cannot proceed directly to a merits vote on a nomination unless it receives unanimous consent from all 100 senators. Senator Paul has been withholding his consent for all floor votes because he wants a vote on his amendment to stop aid to Egypt until Egypt releases the 19 or so Americans they are holding. (Milbank refers to this only obliquely.)

There never was a negative cloture vote on Jordan’s nomination. The fact that the Senate, with overwhelming Republican support, voted for cloture means that there never was a filibuster.

[Clarification (near 1 p.m.): The term “filibuster” is often used interchangeably with “filibuster effort,” and I would have no complaint about use of the term if Senator Paul actually had the ultimate goal of defeating the Jordan nomination. (Even then, though, I don’t see why Milbank would accuse “Republicans” generally of filibustering.) Update: Senator Paul was among the 94 senators who voted today to confirm Jordan.]

2. If any nominee ever suffered a “unique humiliation,” it was the remarkably well-qualified Miguel Estrada, President George W. Bush’s D.C. Circuit nominee against whom the Democrats unleashed the previously unprecedented filibuster tactic and whose nomination faced seven unsuccessful cloture votes. Somehow Milbank makes no mention of the Estrada nomination.

3. Milbank faults Senate Republicans for allowing Senator Paul to delay the confirmation vote until today. (Again, that’s what he means when he says they “roughed up” Jordan.) But, for better or worse, that was Senator Paul’s right under the Senate rules, and if he was going to insist on asserting his right, Senate Republicans lacked the power to override him. 


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