Senate Democrats’ misleading language on a 60-vote ‘standard’ for Supreme Court nominees

Justice Neil Gorsuch “should have a hearing and he should meet the voting standard that Supreme Court nominees are held to of 60 votes, a standard that was met by Elena Kagan as well as Sonia Sotomayor, President Obama’s choices.”
— Sen. Richard J. Durbin (D-Ill.), remarks on MSNBC’s “Morning Joe,” Feb. 1, 2017

“If this nominee cannot meet the same standard that Republicans insisted upon for President Obama’s nominee, 60 votes in the Senate, then the problem lies not with the Senate but with the nominee.”
— Senate Minority Leader Charles E. Schumer (D-N.Y.), remarks on the Senate floor, Feb. 1

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.”

Let’s explore.
The Facts

First, some definitions, as people often get these terms confused: 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. Under current Senate rules, it takes 60 votes to end debate.

Filibusters – and cloture votes – are rather rare in deliberations over a Supreme Court nominee.

The last Supreme Court nominee who faced a cloture vote was Samuel A. Alito Jr. in 2006. He won it handily, 72-25, though the members who voted against ending debate included Schumer, Durbin, Hillary Clinton and Obama. Later, as president, Obama said he regretted his vote.

Ben Marter, a Durbin spokesman, said: “Senator Durbin believes Judge Gorsuch should be held to the same 60-vote threshold that was met by previous nominees.”

Here are the votes for the last six nominees who were confirmed:

Elena Kagan: 63 to 37 (2010)
Sonia Sotomayor: 68 to 31 (2009)
Samuel A. Alito Jr.: 58 to 42 (2006)
John G. Roberts Jr.: 78 to 22 (2005)
Stephen G. Breyer: 87 to 9 (1994)
Ruth Bader Ginsburg: 96 to 3 (1993)

Hmmm, who was the seventh justice?

Clarence Thomas: 52 to 48 (1991)

The remaining justice on the court is Anthony M. Kennedy, who was confirmed 97 to 0 in 1988. Antonin Scalia, whom Gorsuch would replace, was confirmed 98 to 0 in 1986.

So, two of the justices currently on the Supreme Court were confirmed with votes that did not achieve 60 votes.

The Pinocchio Test

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.

Schumer gets kudos for quickly correcting a whopper of a claim, but the “standard” language is still misleading.
Two Pinocchios

More From The Washington Post: