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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, as you might imagine, 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 Barack 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 "who 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 attempted cloture action on judicial nominations approximately 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 President Barack Obama took office in 2009, and 36 were made between 2009 and when the Senate changed its rules in 2013. Miguel A. Estrada, a judge nominated in 2001 to the D.C. Circuit Court of Appeals, saw seven cloture attempts to break a logjam by Senate Democrats before withdrawing his nomination in 2003.
So through that prism, Cardin is off.
Cardin is closer if you look 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 2009-2013, 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 2009-13, the number of nominees subject to a cloture filing jumped to over 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's team said Sen. Chuck Schumer's inquiry on the Senate floor was the basis of Cardin's claim.)
Sen. Schumer asked the Parliamentarian to confirm this fact. The Secretary of the Senate, confirms this. pic.twitter.com/pYPLT1DUt2— Senate D Floor Watch (@DSenFloor) April 6, 2017
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 be 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.
Email interview with Steven Smith, political scientist at Washington University in St. Louis, April 9, 2017
Email interview with Burdett Loomis, University of Kansas political scientist, April 9, 2017
Email interview, Sarah Binder, professor of political science, George Washington University, April 9, 2017
Phone, email exchange, Sue Walitsky, Communications director for Sen. Ben Cardin, April 9, 2017
Congressional Research Service, "Cloture Attempts on Nominations: Data and Historical Development," June 26, 2013
The Washington Post, "How we count Senate filibusters and why it matters," May 15, 2014.
PolitiFact, "Harry Reid says 82 presidential nominees have been blocked under President Barack Obama, 86 blocked under all other presidents," November 22, 2013
United States Senate, Cloture motions
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