Do Supreme Court nominations have to meet a 60-vote Senate “standard” for confirmation? Yesterday, Senate Minority Leader Chuck Schumer made that argument on the Senate floor, echoing an argument made by his deputy Dick Durbin on Morning Joe earlier in the morning. Schumer later amended and extended his remarks to note that Republicans didn’t demand a 60-vote standard for Barack Obama’s picks because they were just so darned mainstream:
Washington Post fact-checker Glenn Kessler has a somewhat different recall of events, and isn’t all that impressed with Schumer’s belated save:
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.”
In fact, two of the current eight Supreme Court justices won their seats with fewer than 60 votes for confirmation, as Kessler points out: Clarence Thomas and Samuel Alito, who was the first nominee to draw a filibuster attempt since Abe Fortas in 1968. Tellingly, 19 Senators objected to the nomination at all, given Lyndon Johnson’s status as a lame duck — an early rendition of the “Biden Rule” that Republicans invoked last year with Merrick Garland. (More on that in a moment.)
In fact, cloture has not been the standard at all for Supreme Court nominations, and even in the one case it did get applied, the cloture vote was much higher than the confirmation vote. Kessler assigns two Pinocchios to Schumer and Durbin:
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.”
Meanwhile, the GOP has unleashed a new video in its campaign to shame Democrats out of a filibuster. They’ve titled it “Supreme Hypocrisy,” but it consists in part of supreme chutzpah:
Ahem. Look, I’m on the same side as the GOP on Gorsuch, who has a sterling record as a jurist after a decade on the 10th Circuit, similar to the qualifications Sonia Sotomayor had when Obama nominated her. Republicans didn’t attempt to block Sotomayor, and several crossed over to vote for her confirmation. It’s worth recalling that Elana Kagan had no appellate experience, other than a brief stint as Solicitor General in the first year-plus of Obama’s term — a job she got without having ever argued a case in court. Republicans didn’t block Kagan, and a smaller number crossed over to support her confirmation.
However, a claim of “supreme hypocrisy” here is at least mid-level hypocrisy. All these quotes the GOP pulled for this video are arguments demanding that Republicans allow confirmation hearings and a floor vote on Garland, which Senate Republicans rejected. That’s legitimate, as the Fortas block and the “Biden Rule” precedents make clear, but that’s simply because Republicans earned control of the Senate. That’s not the argument being made in this video; this video makes the argument that Gorsuch deserves a floor vote because Democrats argued for a floor vote for Garland, without noting the fact that Republicans rejected those demands.
If the GOP wants to argue standards, let’s see a comparison between Democratic arguments on Kagan’s qualifications for confirmation compared to Gorsuch’s. That’ll demonstrate some real hypocrisy.