Republicans' Filibuster Fixation
Counting filibusters is legitimately difficult. But Ed Whelan, in a rejoinder at National Review to both an item of mine and to, well, reality, breaks the first rule of doing this. If Strom Thurmond’s famous record-breaking filibuster wouldn’t count as one under your measure, something’s gone horribly wrong in your analysis.
Whelan says: “For a much sounder measure of actual filibusters, let’s look at defeated cloture motions.”
Oops! Southern Democrats, by this “much sounder measure,” must not have filibustered the Civil Rights Act and the Voting Rights Act, because they failed to defeat cloture.
For that matter, Whelan’s measure isn’t even effective in identifying nominations defeated by filibusters. Floor time is valuable. Unless majority leaders want to prove a point, they don’t bother calling for a cloture vote if they don’t have the votes.
So back when it took a supermajority to invoke cloture, judicial picks such as Circuit Court nominee Robert N. Chatigny, who had the support of a simple majority but not 60 votes, never had any floor vote.
All of which I’d just let go, but Whelan also challenges something far more important: the history that Democrats did not require 60 votes for all nominations when George W. Bush was president, while Republicans required 60 for all nominations during Barack Obama’s presidency right up until October 2013, when the Democratic Senate majority resorted to its "nuclear option" to change the system.
So this is pretty straightforward: Whelan is wrong.
It was the exception when Democrats used the filibuster against some Bush nominations. There was no assumption of automatic filibusters, no insistence on a 60-vote Senate. Thus, John Ashcroft was confirmed as attorney general by 58 to 42; six years later, Michael Mukasey was confirmed by an even closer 53 to 40 (others, for example, here, here and here).
No filibuster; no cloture vote; no need for a supermajority. As I said last time, it is true that Democrats ratcheted up the filibuster wars in the Bush presidency; for example, they used one to block a vote on John Bolton's nomination to the United Nations. (Bush later gave him a recess appointment.) But they didn't insist that every nominee (or every bill, for that matter) needed 60.
There simply aren't comparable stories during the Obama presidency. Any nominee who couldn’t find 60 votes would be blocked, end of story. Which meant that any time Republicans united against an Obama choice (except for a brief period in 2009 when Democrats had 60 senators), the filibuster would defeat the nomination -- most critically in the “nullification” filibusters to block anyone at all from filling some positions.
This doesn't even get into the ways Republicans used the cloture process to chew up time even on uncontroversial nominations, thus reducing the time available for other Senate business.
There’s simply no question about it: Republicans significantly ratcheted up the use of filibusters during the Obama presidency.
Yes, majority leaders in the past have filed cloture petitions pre-emptively, before knowing whether it would be needed, or to shut down debate quickly even when the minority had no real plan to filibuster. Once Republicans declared a 60-vote Senate, however, that was no longer relevant.
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