Bench Memos

Law & the Courts

On the Democrats’ Confirmation-Process Report

(Alan Crosthwaite/Dreamstime)

On May 10, Senate Judiciary Committee Democrats released what purports to be a “review of Republican efforts to stack federal courts.” You can read the first of what will be a series of posts from me about it here.

The report’s first “key finding” is that “[s]ustained efforts by Senate Republicans to block President Obama’s judicial nominees were intended to hold seats open for a Republican president.” They can’t be referring to President Obama’s first term, which saw only two filibusters of either executive- or judicial-branch nominations. (By the way, that was down more than 90 percent from the Democrats’ filibusters during President George W. Bush’s first term.)

And in the 112th Congress, leading up to the 2012 presidential election, the Senate confirmed 111 judges to the federal district and appeals courts — 26 percent more than the two-year average over the previous three decades. So unless “sustained efforts . . . to block . . . judicial nominees” means confirming more of them with less conflict, Democrats cannot here be talking the Obama first term.

That leaves his second term, but this too is a head-scratcher. From 2013 to 2016, the Senate confirmed 152 judges — 25 percent more than during President Bush’s second term. Judicial vacancies during Obama’s second term averaged 76, compared to an average of 134 under President Trump.

How can Democrats make such blatantly false claims? It’s almost like they are using familiar words but meaning something very unfamiliar.

Actually, that’s exactly what they are doing, and here’s an example. On page 9, the report claims: “In the first five years of the Obama administration, Republican senators filibustered 36 judicial nominees” and cites a Congressional Research Service (CRS) report dated June 26, 2013. They may use the word “filibuster” but, it turns out, they are counting something else.

Here’s how the scam works. Senate Rule 22 spells out the process for ending debate, or invoking cloture. That process begins when at least 16 senators sign a cloture motion, which poses a simple question: “Is it the sense of the Senate that the debate [on a particular pending matter] shall be brought to a close?” If 60+ senators vote yes, debate must end, avoiding a filibuster. If fewer than 60 senators vote yes, debate does not end, and it’s a filibuster. The whole cloture process is necessary to determine whether a filibuster exists: The cloture motion asks the question; the cloture vote answers the question, and a negative answer results in a filibuster.

The Democrats’ report claims that there were 36 judicial nomination filibusters, but it is actually counting cloture motions. The CRS report cited (which covers the first four years, not the first five years, of the Obama administration) has a table of what it calls “cloture action” by the Senate. That’s all actions related to the cloture process: motions, votes, and the results of those votes. The only thing remotely close to the claim of 36 filibusters is that a total of 31 cloture motions were filed on judicial nominations during 2009-12.

The table further notes that 23 of those cloture motions, or 74 percent, were withdrawn without any cloture vote at all. It also says that five of the cloture votes that did occur passed, successfully ending debate and avoiding a filibuster. That leaves three failed cloture votes, or three filibusters. Democrats’ claim of 36 filibusters in five years is off by 1,100 percent.

This is not the first time that Democrats have pulled this scam, counting cloture motions but calling them filibusters. Senator Orrin Hatch (R., Utah) has exposed this as “filibuster fraud.”

That’s enough for now but there’s plenty more to come on this topic.

Thomas Jipping is the deputy director of the Edwin Meese III Center for Legal and Judicial Studies and a senior legal fellow at the Heritage Foundation.

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