Bench Memos

Filibuster Delusions

Jonathan Bernstein’s major contention in this Bloomberg essay is that Senate Republicans in 2009 “implemented unprecedented across-the-board filibusters on everything” and in the ensuing years continued those “across-the-board filibusters on everything” until Senate Democrats finally had no choice but to “go nuclear” last year.

When I first read Bernstein’s claim, I thought that he might be peddling the deceptive claim that every cloture motion that Senate majority leader Harry Reid has filed somehow counts as a Republican filibuster. As I’ve explained before in greater detail, the Congressional Research Service has <a href="'0E,*P,;

emphasized that “cloture motions do not correspond with filibusters,” and the Washington Post’s Glenn Kessler has noted that Reid “often files cloture on multiple bills or nominations at once to speed things along even if no one is slowing things down.” (Emphasis added.) 

But, as I discovered through a Twitter exchange with Bernstein yesterday, it turns out that his position is even more extreme than that. Bernstein maintains that some statement made in 2009 by Republican leader Mitch McConnell to the effect that “if you don’t have 60, we won’t allow final vote” ipso facto means that Senate Republicans should be deemed to have filibustered everything that happened in the Senate after that statement.

Bernstein’s position is nuts. The proposition that he attributes to McConnell is nothing more than an elementary statement of how the Senate cloture rule operates—or, rather, operated until last year. (When I asked Bernstein in a previous exchange to identify the supposedly unprecedented, tradition-shattering statement that McConnell made, he didn’t do so and instead snarked, “C’mon, if you don’t know this, you shouldn’t be playing.”) It’s much more modest than, say, Democratic leader Tom Daschle’s vow in early 2001 to use “whatever means necessary” against President George W. Bush’s nominees. Bernstein claims that McConnell’s statement “was enforced” (whatever that means). The same could equally be said of Daschle’s vow. Yet somehow Bernstein treats McConnell’s statement, but not Daschle’s, as transforming everything that happened thereafter into a filibuster.

What was unprecedented was the campaign of partisan filibusters that Senate Democrats launched against Bush’s judicial nominees in 2003. Bernstein buries that campaign in a footnote and calls it only “a significant ratcheting up”—vastly less significant than the imaginary “unprecedented across-the-board filibusters on everything” that Senate Republicans supposedly engaged in from 2009 forward.

For a much sounder measure of actual filibusters, let’s look at defeated cloture motions. On this count, ten Bush 43 judicial nominees encountered a total of 20 defeated cloture motions in a period of two years. By contrast, over the nearly five years of the Obama administration that preceded Senate Democrats’ abolition of the filibuster, six Obama judicial nominees suffered a total of seven defeated cloture motions. (Plus, one of those six nominees, Robert Bacharach, was defeated on cloture at the very end of July 2012 not as part of an effort to defeat his ultimate confirmation but in an application of the Thurmond Rule on election-year action. Bacharach was unanimously confirmed in February 2013.) So much for Bernstein’s claim that Republican “overreach … forced Democrats to go nuclear.” 

Ed Whelan — Ed Whelan is a leading commentator on nominations to the Supreme Court and the lower courts and on issues of constitutional law.

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