Bench Memos

Law & the Courts

Dana Milbank’s Absurd Filibuster Propaganda

In the course of a vicious hit piece on Senate majority leader Mitch McConnell, the Washington Post’s Dana Milbank claims that “By 2013 … 79 of Obama’s nominees had been blocked by filibusters, compared with 68 in the entire previous history of the Republic.” His claim is absurdly wrong.

Let’s review Milbank’s folly:

1. By November 2013, Senate majority leader Harry Reid had filed cloture motions on 79 Obama nominees. See Table 6 of this Congressional Research Service report, along with the update in Table 1 of this CRS memorandum.

As the Congressional Research Service emphasizes in a heading in its report, “Cloture Motions Do Not Correspond With Filibusters” (underlining added):

Although cloture affords the Senate a means for overcoming a filibuster, it is erroneous to assume that cases in which cloture is sought are always the same as those in which a filibuster occurs. Filibusters may occur without cloture being sought, and cloture may be sought when no filibuster is taking place. The reason is that cloture is sought by supporters of a matter, whereas filibusters are conducted by its opponents.…

For [various] reasons [that the CRS report spells out], it would be a misuse of the following data, which identify nominations on which cloture was sought, to treat them as identifying nominations subjected to filibuster. [Pp. 2-3 (emphasis added).] 

Indeed, back in 2013, the Washington Post’s Glenn Kessler awarded three Pinocchios to similar extravagant claims that every cloture motion filed by Reid counted as a Republican filibuster. As Kessler explained, 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.) Kessler also gave two Pinocchios to a tweet by Harry Reid that is very similar to Milbank’s claim.

2. It’s bad enough that anyone might confuse cloture motions with filibuster efforts, as Milbank has done in the past. But Milbank now somehow imagines that all nominations on which cloture motions were ever filed were “blocked by filibusters.”

By my quick count, the cloture motions that Reid filed on some 39 of the 79 nominees were withdrawn or mooted, and the motions on 28 others were successful, many with strong Republican support. (Only twelve of the 28 received more than 30 negative votes, and eleven of them had fewer than twenty negative votes.) All of those nominees were confirmed.

Of the eleven cloture motions that were defeated, three of the nominations were confirmed after some delay, and four others were confirmed after Democrats abolished the filibuster.

In sum, even under a very liberal account of what “blocked by filibusters” might plausibly mean, it is difficult to see how anyone could contend that more than eleven of Obama’s nominees were “blocked by filibusters.”

3. By contrast, Table 6 of the CRS report shows that 14 nominees of President George W. Bush were blocked by Democratic filibusters. Indeed, it was Harry Reid and his fellow Democrats who initiated the unprecedented use of the partisan filibuster against judicial nominees.

4. Milbank’s comparison of Obama’s presidency to the “entire previous history of the Republic” not only conflates cloture motions with filibusters. It also ignores the fact that cloture motions on nominations became allowable under Senate rules only in 1949, so there was no “history of the Republic” on cloture motions on nominations before then.

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