Bench Memos

Re: Filibuster Delusions

Last Friday, I explained why Jonathan Bernstein’s claim that Senate Republicans should be deemed to have filibustered “everything” from 2009 forward was, to put it bluntly, nuts. In his BloombergView column yesterday, Bernstein tries to strike back. But he whiffs badly.

Let’s consider his arguments one by one:

1. I stated in my post that defeated cloture motions were “a much sounder measure of actual filibusters” than Bernstein’s absurd inclusion of “everything, of all nominations and bills since 2009. Stripping my statement out of context, Bernstein contends that I was adopting a definition of filibuster that wouldn’t count “Strom Thurmond’s famous record-breaking filibuster” and that that shows that “something’s gone horribly wrong in [my] analysis.”

Two simple points in response:

a. All I said is that defeated cloture motions are “a much sounder measure of actual filibusters” than Bernstein’s absurd measure. It’s an utter diversion to contend that the number of defeated cloture motions doesn’t fully capture everything that might fairly be called a filibuster.

By analogy: It’s as though Bernstein alleged that number of pitches thrown is the proper measure of pitching excellence; I responded that ERA is a much sounder measure; and Bernstein replied that ERA across pitchers doesn’t fully take into account differences between the National League and the American League. His reply may well be right, but it has no bearing on my point that ERA is a much sounder measure of pitching excellence than number of pitches thrown is.

b. I don’t think that I have ever maintained that defeated cloture motions necessarily provide the exclusive measure of filibusters. On the contrary, I have quoted, without objection, the Congressional Research Service’s statement that “Filibusters may occur without cloture being sought.” So I’m very open to the possibility that there may be things other than defeated cloture motions that ought also to count as filibusters. (And I also readily acknowledge that there are forms of obstruction other than filibusters.)

So if Bernstein wants to abandon his absurd measure and instead add so-called speaking filibusters in with defeated cloture motions, I certainly wouldn’t object. (That said, Bernstein seems to have learned his Senate procedure from “Mr. Smith Goes to Washington” if he imagines that a speaking filibuster is an effective measure of obstruction, much less the epitome of what a filibuster is. Senator Thurmond’s “famous record-breaking filibuster” lasted only 24 hours and 18 minutes and was ineffective in obstructing passage of the Civil Rights Act of 1957. Defeated cloture motions can kill nominations or delay them for months or years.)

2. Bernstein contends that the number of defeated cloture motions fails to take into account nominations on which the majority leader won’t “bother calling for a cloture vote” because he doesn’t have the votes to prevail. He cites the Second Circuit nomination of Robert N. Chatigny as an example of someone “who had the support of a simple majority but not 60 votes” and who “never had any floor vote.”

Again, Bernstein’s point has nothing to do with whether defeated cloture motions are “a much sounder measure of actual filibusters” than his count of “everything.” Further, if he were proposing to tweak my count of filibusters by adding in the small category of nominees who have clear majority support but who never get a floor vote because it’s clear that cloture would be defeated, I would have no objection in principle.

(As a matter of practice, though, I’ll note that Bernstein’s proposed category introduces a lot of uncertainty, as it will often be very difficult to identify which nominees fall into this small category. In any event, Bernstein could hardly have come up with a worse example than Chatigny. Terrified of how Chatigny’s strange intervention on behalf of a serial killer would play in the 2010 elections, Senate Democrats evidently didn’t want any floor vote on his nomination. Indeed, after the initial referral of his nomination to the full Senate was returned, Democrats on the Senate Judiciary Committee never even reported his nomination back to the Senate floor. So Bernstein’s claim that Chatigny had majority support in the full Senate is highly speculative at best.)

3. I explained in my post that the proposition that 60 votes were needed for action in the Senate was an elementary statement of how the Senate cloture rule operated, not some dramatic change that Senate Republicans implemented in 2009. Clinging to his contrary myth, Bernstein argues that Senate Democrats in the George W. Bush administration, supposedly unlike Senate Republicans during the Obama administration, made “no assumption of automatic filibusters, no insistence on a 60-vote Senate.” His proof: he names two Bush nominees who were confirmed with fewer than 60 votes.

By the same measure, Bernstein’s claim that Senate Republicans should be deemed to have filibustered “everything” since 2009 also fails. I can point to a lot more than two Obama nominees who were confirmed with fewer than 60 votes. Looking only at votes in 2013 that preceded the Democrats’ abolition of the filibuster, I see all these nominees who were confirmed with fewer than 60 votes: Chuck Hagel, Thomas Perez, Regina McCarthy, Kent Hirozawa, Nancy Schiffer, Mark Pearce, Byron Jones, Richard Griffin, William Orrick, Jennifer Dorsey, David Medine. To be sure, most—but not all—of these nominees won cloture motions, but the fact that some Republicans voted for cloture but against the nomination simply proves that Republicans were not filibustering all Obama nominees whom they opposed on the merits. They were not, in other words, “insist[ing] on a 60-vote Senate.”

I’ve quickly reviewed the roll-call votes for 2009 through 2012 and have found an additional ten nominees (some seven of whom did not face cloture votes) who were confirmed with fewer than 60 votes.

Have in mind, further, that Bernstein’s absurd claim extends to “everything,” including legislation, so all the bills and amendments that passed with fewer than 60 votes also, by his own measure, defeat his claim.

In short, Bernstein’s claim that Senate Republicans “implemented unprecedented across-the-board filibusters on everything” truly is nuts. 


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