By Allison Graves
Republicans changed Senate rules to break a Democratic filibuster and confirm Neil Gorsuch to the U.S. Supreme Court, and blamed Democrats for necessitating the change along the way.
Democrats, naturally, saw it differently.
In a post-mortem on the Senate showdown, Fox News Sunday’s Chris Wallace asked Sen. Ben Cardin (D-MD) whether the Democrats made a strategic mistake deciding to filibuster Gorsuch’s nomination. Cardin said both parties are to blame, noting that Republicans engaged in the same type of action during President Obama’s first term, when Republicans held up Obama’s judicial nominees.
“We’ve seen more filibusters on judicial nominees by the Republicans under President Obama than we saw in the whole history of the United States Senate,” Cardin said April 9. “Both sides have blame here.”
We heard a similar claim on ABC’s This Week. Former DNC pollster Cornell Belcher said Senate Majority Leader Mitch McConnell “blocked more of President Obama’s nominees than have been blocked in history.”
Is that so?
Defining, counting filibusters
Cardin used the term “filibuster,” but measuring filibusters is troublesome, experts say, because it has an overly broad meaning. Senators tend to consider any type of obstruction to scheduling a nomination or measure as a filibuster, said Steven Smith, a political scientist at Washington University in St. Louis.
“The whole use of the term filibuster is problematic, given its evolution over the years,” added University of Kansas political scientist Burdett Loomis. “It ends up being a regular event, used all the more frequently in more partisan Congresses.”
As a result, experts say a way to approximate—but not entirely count—filibusters is to count the number of times the Senate attempts to break a filibuster by forcing an up-or-down vote through a process called cloture.
In recent years, a cloture motion required the approval of 60 senators. But in 2013, Democrats changed the rules so that a simple majority could invoke cloture for presidential appointments and lower court nominees. The 60-vote threshold stood for legislation and the Supreme Court.
To confirm Gorsuch, Republicans eliminated the 60-vote threshold for Supreme Court nominees. It remains in place for legislation.
What the research shows
Cardin’s claim stems from a 2013 report by the Congressional Research Service, the independent research arm of Congress. The document, along with a subsequent memorandum on the report, lists every instance in which a presidential nominee was blocked and cloture was filed through Nov. 20, 2013, when Democrats changed Senate rules.
According to the Congressional Research Service, senators sought cloture action on judicial nominations a total of 86 times between 1967 and the end of 2013. (Pre-1967, the Congressional Research Service lists no cloture attempts—so “history” as Cardin put it, is relatively short.)
Of those, 50 were made before Obama took office in 2009, and 36 were made between 2009 and when the Senate changed its rules in 2013. After President Bush nominated Miguel A. Estrada to the D.C. Circuit Court of Appeals in 2001, seven cloture attempts to break a logjam by Senate Democrats failed before he withdrew his name from consideration in 2003.
So through that prism, Cardin is off.
Cardin is closer if one looks at individual judicial nominees who were subject to a cloture filing (because nominees like Estrada were subject to a cloture filing multiple times). Pre-Obama, 36 judicial nominees were subject to a cloture filing, we found. From 2009 to 2013, it was the same: 36 judicial nominees.
To put that in perspective, and to see Cardin’s point, look at it this way: Less than one nominee per year was subject to a cloture filing in the 40 years before Obama took office. From 2009 to 2013, the number of nominees subject to a cloture filing jumped to more than seven per year.
In 2013, then-Senate Majority Leader Harry Reid was much closer to being correct when he said, “In the history of the United States, 168 presidential nominees have been filibustered: 82 blocked under President Obama, 86 blocked under all the other presidents.” His figure included non-judicial nominees.
As part of that fact-check, we noted that “By our calculation, there were actually 68 individual nominees blocked prior to Obama taking office and 79 (so far) during Obama’s term, for a total of 147.”
Senate Democrats made that same point in a tweet April 6.
Cardin said, “We’ve seen more filibusters on judicial nominees by the Republicans under President Obama than we saw in the whole history of the United States Senate.”
Cardin used an imprecise term, “filibuster,” to describe a precise Senate parliamentary procedure, “cloture.” As far as cloture data kept by the Congressional Research Service, Cardin would been on safer ground if he avoided focusing on “judicial” nominees. By our count, cloture was filed on 36 judicial nominations during the first five years of Obama’s presidency, the same total as the previous 40 years combined.
On balance, we rate this claim Half True.
Read the full fact-checks at PunditFact.com.