U.S. Sen. Chris Coons, D-Del., (second from right) listens to Sen. Ben Cardin, D-Md., (right) at the Capitol on April 6. (Photo by Alex Wong/Getty Images)
Photo: Alex Wong
Photo: Alex Wong

Senator has a point, but ‘filibuster’ count misses mark

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.

On “Fox News Sunday” this week, Sen. Ben Cardin, D-Md., 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. “Both sides have blame here.”

We heard a similar claim on ABC’s This Week. Former Democratic National Committee pollster Cornell Belcher said Senate Majority Leader Mitch McConnell blocked more of President Obama’s nominees than have been blocked in history.”

Is that so?

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.

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 a 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 a simple majority could invoke cloture for presidential appointments and lower court nominees. The 60-vote threshold stood for legislation and the Supreme Court, until Republicans eliminated it this month for Supreme Court nominees. It remains in place for legislation.

A 2013 report by the Congressional Research Service, the independent research arm of Congress, 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 before President Barack Obama took office in 2009, and 36 were between 2009 and when the Democrats changed the 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: 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.

Our ruling

Cardin used an imprecise term, “filibuster,” to describe the Senate parliamentary procedure cloture. Based on 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.

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