Facts Matter: Debunking Democrats' Misleading Claim on 'Unprecedented' Filibusters

Posted: Apr 10, 2017 2:35 PM
As Justice Gorsuch takes his seat on the Supreme Court, furious liberals are channeling their bitterness in various ways. Two popular refrains are that Gorsuch is an "illegitimate" justice who occupies a "stolen" seat (wrong), and that Mitch McConnell is History's Greatest Monster for placing a risky political bet (while playing Democrat-style hardball) and winning.  These arguments ignore historical precedent and inconvenient context, and rest on the preposterous notion that McConnell and his party are the bad actors here.  As Matt noted earlier, even former Senate Democratic leader Tom Daschle -- who was ousted by South Dakotans in 2004 in large measure due to his featured role in anti-Bush obstructionism -- acknowledges that Democrats have "far dirtier hands" on these issues than their opponents.  He's right.  Nevertheless, in an effort to draw a false moral equivalency, lefties are leaning on a Democratic distortion about Republicans' supposedly "unprecedented" number of filibusters against President Obama's judicial nominees.  

In his irate screed against McConnell, Washington Post columnist Dana Milbank repeats the claim that “by 2013…79 of Obama’s nominees had been blocked by filibusters, compared with 68 in the entire previous history of the Republic.”  This talking point would suggest that the GOP's actions were truly extraordinary and outrageous, and might offer a legitimate justification for Harry Reid's decision to "go nuclear."  The dramatic number does, however, seem difficult to square with the fact that over the course of his first term (leading into 2013), Obama's circuit court nominees enjoyed a higher confirmation rate than George W. Bush's did.  That's because the statistic is "absurdly wrong," as explained in excruciating detail by Ed Whelan:

By November 2013, Senate majority leader Harry Reid had filed cloture motions on 79 Obama nominees...As the Congressional Research Service emphasizes in a heading in its report, “Cloture Motions Do Not Correspond With Filibusters...” By my quick count, the cloture motions that Reid filed on some 39 of the 79 nominees were withdrawn or mooted, and the motions on 28 others were successful, many with strong Republican support. (Only twelve of the 28 received more than 30 negative votes, and eleven of them had fewer than twenty negative votes.) All of those nominees were confirmed. Of the eleven cloture motions that were defeated, three of the nominations were confirmed after some delay, and four others were confirmed after Democrats abolished the filibuster. In sum, even under a very liberal account of what “blocked by filibusters” might plausibly mean, it is difficult to see how anyone could contend that more than eleven of Obama’s nominees were “blocked by filibusters.”
So Reid filed 79 cloture motions, which are not synonymous with "filibusters" -- and only 11 of those led to anything that could be considered actual "blocking." Indeed, more than one-third of the votes cited to "prove" this bogus point were successful. That is the opposite of "blocking."  Also, this analysis doesn't include McConnell's offer to invoke cloture on a number of stymied Obama nominees, which Reid rejected.  And it's always worth mentioning that filibustering majority-backed judicial nominations was a Democratic invention.  In response to Whelan's dismantling, Milbank tweeted a link to (surprise!) Politifact, the left-leaning "fact checker" with a richly-earned reputation for partisan bias, shoddy work, and embarrassing credulousness:

Law professor Jonathan Adler was...less than impressed:

Oops. Milbank appears to have declined the guidance of his own newspaper's fact checker who swatted down this exact claim, which Democrats have been peddling for years as an inaccurate fig leaf to rationalize their power grab. Ta-da:

I'll leave you with Neil Gorsuch, 100 percent legitimate Associate Justice of the United States Supreme Court, being sworn in this morning at the White House:

This scene may bother liberals, but their party's history of escalations and partisan aggressions made it possible. As did the fact that their party lost consecutive national elections, including the Big One. To Donald Trump.

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