We are apparently going to keep hearing the same prattle from the Democrats about how “everyone has to get 60 votes in order to be confirmed for the Supreme Court” for the next four years. The latest person to invoke this popular Beltway urban legend was Senator Tammy Baldwin. In a recent interview she described it as, the same standard which every other Supreme Court nominee has had to meet. In an unusual display of bipartisan accountability, the Washington Post fact checker actually decided to take her to task and remind the public that this is not only inaccurate, but nearly as far off base as one could get.
As we have noted before, there is no Senate “standard” that a nominee must have 60 votes for confirmation. But, under current Senate rules, it takes 60 votes (three-fifths of the Senate) to end debate on most legislation. Until Democrats changed the rules in 2013, it also took 60 votes to end debate on executive branch and most judicial nominations.
The Democratic rule change did not include Supreme Court nominations. But that would be a rare maneuver.
(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 to end debate.)
Not only is this not a standard which “everyone had to meet,” the Senate has rarely even needed to invoke cloture for a vote to take place. In fact, as the linked article reminds us, it’s only happened four times. One was for Samuel Alito and two of the others were for William Rehnquist. All three of those efforts eventually failed. The only time it actually worked was during the tenure of Lyndon Johnson when he was attempting to advance Abe Fortas from associate justice to Chief Justice. Other than that, this so-called standard which everyone had to meet is complete fiction.
What’s not fictional is the fact that the attempt by the Democrats to filibuster Alito set something of an actual standard. It introduced the idea of obstruction of an indubitably qualified candidate from the opposition party as some sort of noble ideal and a badge of honor. This is yet another case where the Party of the Donkey seems to be forgetting that what goes around comes around. If you stop and think about it there’s a clear parallel between this new “tradition” and their move to eliminate the filibuster for certain actions the last time they held power. Moves like that play well with the base and the media certainly laps it up but when the shoe is on the other foot it has a nasty tendency to kick your teeth in.
I could go on at length on this subject, but there’s really no point. The play is already in motion and I can’t imagine anything being said by anyone at this point slowing the train down. Even though the seating of Neil Gorsuch will not change the ideological balance of the court from what it was when Antonin Scalia was there, the Democrats are clearly prepared to go to the wall and gum up the works as much as possible in order to prove to their base how “tough” they are. This is the new normal, so we might as well just invoke the nuclear option now and be done with it.