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Senate Democrats’ misleading language on a 60-vote ‘standard’ for Supreme Court nominees

Senate Minority Leader Charles E. Schumer (D-N.Y.) says Neil Gorsuch, President Trump’s nominee for the Supreme Court, ought to be confirmed with 60 votes. (Video: Reuters)

Justice Neil Gorsuch “should have a hearing and he should meet the voting standard that Supreme Court nominees are held to of 60 votes, a standard that was met by Elena Kagan as well as Sonia Sotomayor, President Obama’s choices.”
— Sen. Richard J. Durbin (D-Ill.), remarks on MSNBC’s “Morning Joe,” Feb. 1, 2017

“If this nominee cannot meet the same standard that Republicans insisted upon for President Obama’s nominee, 60 votes in the Senate, then the problem lies not with the Senate but with the nominee.”
— Senate Minority Leader Charles E. Schumer (D-N.Y.), remarks on the Senate floor, Feb. 1

“I am coming back to the floor to correct the record about my earlier comments, when I said that Republicans ‘insisted’ on 60 votes for each of President Obama’s nominees. Sixty votes is a bar that was met by each of President Obama’s nominees. At the time, there was no need for a cloture vote, because we knew that each of them would garner over 60 votes.”
— Schumer, minutes later on the Senate floor.

In the looming battle over President Trump’s nomination of Gorsuch to be a Supreme Court justice, Schumer avoided a few Pinocchios when he quickly returned to the floor and took back his earlier statement that Republicans “insisted” that President Barack Obama’s nominees required 60 votes.

But you can see, in Durbin’s remarks, the slippery language that Democrats use to give the impression that achieving 60 votes is some sort of Senate “standard.” Even in his amended remarks, Schumer went on to say “60 votes is the right standard for this nominee.”

Let’s explore.

The Facts

First, some definitions, as people often get these terms confused: A filibuster generally refers to extended debate that delays a vote on a pending matter, while cloture is a device to end debate. Filibusters are used by opponents of a nominee or legislation, while cloture is filed by supporters. Under current Senate rules, it takes 60 votes to end debate.

Filibusters – and cloture votes – are rather rare in deliberations over a Supreme Court nominee.

The last Supreme Court nominee who faced a cloture vote was Samuel A. Alito Jr. in 2006. He won it handily, 72-25, though the members who voted against ending debate included Schumer, Durbin, Hillary Clinton and Obama. Later, as president, Obama said he regretted his vote. (He apparently had been persuaded by aides that he would not be viable candidate for the Democratic presidential nomination if he did not vote against ending debate.)

After the cloture vote, senators voted on whether to confirm Alito. The vote was 58-42. (He earned the support of four Democrats, but was opposed by one Republican and one Republican-turned-Independent.)

Another key cloture vote in modern times concerned Lyndon B. Johnson’s 1968 nomination of Abe Fortas, at the time an associate justice, to be chief justice. Johnson was a lame duck, having decided not to seek reelection. Although Democrats controlled the Senate, Southern Democrats were angry at the Warren court’s record on jurisprudence — and the Republican presidential nominee, Richard Nixon, had pledged to nominate a Southerner as his first Supreme Court pick.

Nineteen senators, in fact, declared that they would refuse to accept any nomination by Johnson because he was a lame duck. The Fortas nomination eventually ran aground over ethics issues and his close relationship with Johnson, and he eventually withdrew after his nomination failed a cloture vote. At the time, Senate rules required approval of two-thirds of the Senate to end debate – and Fortas could only achieve a vote of 45 to 43.

Finally, there were two cloture votes involving the late Chief Justice, William H. Rehnquist. In 1971, a motion to invoke cloture failed by a vote of 52-42, but nevertheless he was confirmed later that day 68-26. When he was nominated to become chief justice in 1986, he was confirmed 65-33 after cloture was also invoked by a vote of 68-31.

So in modern times, there have been a total of four cloture votes concerning Supreme Court nominations.

Matt House, Schumer’s spokesman, said that “we do not maintain that it was a standard Republicans required, only that it was one that has been met by the last six justices, appointed by presidents from both parties.” Although Alito failed to get 60 votes, House pointed to the cloture vote as evidence that Alito met the necessary standard.

Ben Marter, a Durbin spokesman, said: “Senator Durbin believes Judge Gorsuch should be held to the same 60-vote threshold that was met by previous nominees.”

Here are the votes for the last six nominees who were confirmed:

Elena Kagan: 63 to 37 (2010)
Sonia Sotomayor: 68 to 31 (2009)
Samuel A. Alito Jr.: 58 to 42 (2006)
John G. Roberts Jr.: 78 to 22 (2005)
Stephen G. Breyer: 87 to 9 (1994)
Ruth Bader Ginsburg: 96 to 3 (1993)

Hmmm, who was the seventh justice?

Clarence Thomas: 52 to 48 (1991)

The remaining justice on the court is Anthony M. Kennedy, who was confirmed 97 to 0 in 1988. Antonin Scalia, whom Gorsuch would replace, was confirmed 98 to 0 in 1986.

So, two of the justices currently on the Supreme Court were confirmed with votes that did not achieve 60 votes.

The Pinocchio Test

Democrats are being slippery with their language. Sixty votes is not “a standard” for Supreme Court confirmations, as two of the current justices on the court did not meet that supposed standard.

There is a separate issue of whether Republicans will have to invoke cloture to end a filibuster — and whether Gorsuch could meet the necessary 60 votes to proceed to a confirmation vote. In Supreme Court nominations, that’s a rarely used parliamentary tactic that is certainly available to Democrats to establish a threshold for confirmation. But it’s not “a standard.”

Schumer gets kudos for quickly correcting a whopper of a claim, but the “standard” language is still misleading.

Two Pinocchios

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Gorsuch "should meet the voting standard that Supreme Court nominees are held to of 60 votes."
on the Senate floor
Wednesday, February 1, 2017