Sen. Bernie Sanders (I-Vt.): “It’s not a question of filibuster. I am for the Republicans obeying the rules that currently exist, and not changing those rules. And the rules right now, for good reasons, are 60 votes.
Dana Bash: “Well, okay. The rules do allow for a filibuster for the Supreme Court nomination, but it certainly doesn’t require Democrats to use that.”
Sanders: “You’re using the word filibuster.”
Bash: “Because that’s what it is.”
Sanders: “All it is, is there will be — no, it is not. There will be a vote. If he doesn’t get 60 votes, he does not become Supreme Court justice. That’s the rule right now. It’s not like people are going to be there standing for months and months, bringing down the government. That is what the current rule is. And I think it’s important that it be maintained.”
— exchange on CNN’s “State of the Union,” March 26, 2017

Democrats in the Senate continue to persist with the false talking point that they are simply holding Supreme Court nominee Neil Gorsuch to a “standard” of 60 votes when there is actually nothing standard about requiring a Supreme Court nominee to have 60 votes.

But even after hearing this claim over and over again from Democrats, we were surprised to hear Sanders, an independent who caucuses with Democrats, declare that this wasn’t even a filibuster, just simply “the rule right now.”


The Facts

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.

Democrats repeatedly complained about filibusters by the GOP, when it was in the minority, that thwarted action on legislation and nominations. Here’s a screen grab of a page on Sanders’s website, titled “Bills Blocked by Republican Filibusters:”

As we have noted, filibusters — and cloture votes — are rather rare in deliberations over a Supreme Court nominee. In all, there have been a total of four cloture votes concerning Supreme Court nominations — the successful blocking of the 1968 nomination of Abe Fortas, and unsuccessful filibusters of William H. Rehnquist in 1971 and 1986 (for chief justice) and also Samuel A. Alito Jr. in 2006.

But those have been the exception, not the rule, as Sanders claims. Two members of the current court were confirmed with fewer than 60 votes. Alito won the cloture vote, 72 to 25, but then was confirmed by a vote of 58 to 42. Clarence Thomas, another current justice, was confirmed by a vote of 52 to 48 in 1991.

Democrats didn’t even try to filibuster Robert Bork in 1987, despite their vehement opposition to his nomination. He was rejected by the Senate by a vote of 58 to 42.

When we asked Sanders’s office for an explanation of his claim that requiring 60 votes would not be a filibuster, spokesman Michael Briggs responded:

There are only two ways to end debate on a Supreme Court nomination:
1. By voting to invoke cloture which needs 60 votes.
2. By unanimous consent.
Both of President Obama’s Supreme Court nominees received more than 60 votes. Since Senate Republicans understood that President Obama’s nominees would receive at least 60 votes, they did not object to ending debate.

So Sanders appears to be hanging his hat on a very technical distinction. It is correct that not every cloture vote ends a filibuster. As the Congressional Research Service has noted:

“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.”

Another CRS report says that there are “no specific rules for filibustering,” but it is often used to refer to senators “holding the floor in extended debate. More generally, however, filibustering includes any tactics aimed at blocking a measure by preventing it from coming to a vote.”

Sanders appeared to be evoking the image of extended debate — “people are going to be there standing for months and months, bringing down the government.” But in reality, he and other senators have generally used filibuster to mean one group of senators preventing a matter from coming to a vote. That’s how he framed it on his website — and other Democrats have also referred to a filibuster of Gorsuch.

The Pinocchio Test

Sanders is using the technical language of arcane Senate procedures to an absurd extreme. He claims that Democrats are not engaging in a filibuster when they demand 60 votes from the Senate before a vote on the nomination can be held. Instead, he says that Republicans need to “invoke cloture” to bring the nomination to a vote — which is a technical way of saying they need to bring a filibuster to an end before a vote can take place. (Only in rare circumstances anymore do senators seek to hold the floor in continuous debate.)

Sanders was perfectly happy to call Republicans’ demands for 60 votes “filibusters.” He should admit that’s what’s happening now, rather than engaging in verbal gymnastics to obscure the truth.

Once again: There is no “traditional” 60-vote “standard” or “rule” for Supreme Court nominations, no matter how much or how often Democrats claim otherwise.

Three Pinocchios

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"It is not [a filibuster]. There will be a vote. If he doesn’t get 60 votes, he does not become Supreme Court justice."
in an interview on CNN’s "State of the Union"
Sunday, March 26, 2017