No, Republicans Have Not Blocked 82 Obama Nominees

This post imported not-too-well from WordPress to Substack. Read the original here: https://www.jamesjheaney.com/2013/11/22/no-republicans-have-not-blocked-82-obama-nominees/

Pictured: "Fuzzy Math"

SPOILER ALERT: At the end of this article, we will reveal that Republicans have in fact blocked only 8 Obama nominees.

The golden rule of infographics: the vaguer the source cited, the falser the claim.

Today, Senate Democrats under Sen. Harry Reid nuked the filibuster.  I commend their decision, which was a tactically intelligent one. My only regret is that a handful of Republicans failed to show the same level of intelligence in 2003.  They aren't called the Stupid Party for nothing — and Sen. McCain, who led the 2005 Committee to Save the Filibuster, has always been one of our dimmest bulbs, at least when it comes to the cutthroat politics of the ongoing Culture War. (Nice guy, though!)

Yet the Senate Democrats are not content to say, "Ha! You idiots! We still can't believe you actually fell for that 'compromise'!" and get on with the business of liberal court-packing.  The Democrats are searching desperately for a moral justification for their parliamentary maneuver.  This is no doubt because, when Republicans were in power, the very same Democrats who today cast the deciding votes for the nuclear option defended the filibuster in moral terms, so they would look like huge honking hypocrites if they didn't find some moral reason for changing their position.

The major justification making the rounds today is that Democrats used the filibuster to a reasonable extent, but Republicans have been using it with disproportionate abandon, forcing the Democrats to take away this tool for the good of the country.  The infographic above has been particularly prominent, appearing on Sen. Reid's own Twitter feed, with sourcing from Sen. Reid's own press release.

Don't you believe it for a minute!

The source, according to the press release, is this Congressional Research Service report:

Cloture Attempts on Nominations: Data and Historical Development, by Richard S. Beth, published 26 June 2013

This report details (especially in Table 6, which is where we'll be spending most of this post) every single nominee who has ever had to face a cloture vote.

Now, the first and most important thing worth noting is that cloture votes do not correspond to filibusters.  Some filibusters happen without cloture votes; some cloture votes happen without filibusters.  When Sen. Reid states in his press release that this report gives a history of the filibuster, he is deliberately misrepresenting the data.  Those aren't my words -- they're the Congressional Research Service's:

For all these reasons, it would be a misuse of the following data, which identify nominations on which cloture was sought, to treat them as identifying nominations subjected to filibuster. It would equally be a misinterpretation to assume that all nominations on which cloture was not sought were not filibustered (especially for periods before 1949, when, as discussed later, it first became possible to move cloture on nominations). This report provides data only on nominations on which cloture motions were offered. It is not to be taken as providing systematic data on nominations that were or were not filibustered. It would not be feasible to develop a list of measures filibustered unless a commonly accepted single standard for identifying what constitutes filibustering could first be established. At most, the data presented here may be regarded as identifying some potentially likely cases in which a filibuster (by some appropriate definition) may have occurred.

So let's get this out of the way right off the bat: Sen. Reid's talking points — indeed, the talking points of a very large portion of today's Left Wing (hey there, New York Times!) — are bald-faced lies, called out by the very source Reid himself cites to make his claims.

But let's be gentle.  Partisans on both sides, after all, frequently use cloture votes as a proxy for filibuster measurement, despite the serious misgivings responsible people have about doing so.  And cloture votes are probably at least in the ballpark, if not precisely accurate.  Does granting an equivalence between cloture invocation and an attempted filibuster make Sen. Reid's infographic true?

Ha ha ha! Not by a long shot.  Even by the most generous interpretation, it appears that Sen. Reid simply has his numbers wrong.  Table 4 of the CRS report (p. 8) informs us that there were 122 clotured nominees from the Founding through 2012.  (The first ever was used in 1968 against Abe Fortas, and it was a bipartisan filibuster. Oh, for the Great Consensus Era! When even our filibusters were bipartisan!)  A thorough search of current legislative records reveals twenty-three more (Schiffer, Hirozawa, Wilkins, Pillard, Millett, Archuleta, Watt, Pearce, Hochberg, Perez, McCarthy, Jones, Brennan, Estevez, Hagel, Lew, Wheeler, Power, Comey, Block, Srinivasan, Griffin, and Griffin again for another position).  That yields a total of 145, not 168.

Sen. Reid's denominator of 168 is simply wrong.  I don't know where he got it, but it wasn't the Congressional Research Report he cited, and it wasn't the official public records of the U.S. Congress.  It is always distressing when a fact-checker like me can't even figure out where a claim came from, but it does happen occasionally.  It's just that usually Senators are a bit more careful about sources than Internet Urban Legends.

Of course, Sen. Reid's numerator is wrong, too.  Using the magic of counting, it turns out that there have been cloture votes on 77 Obama nominees, not 82. (That's 54 from the CRS report + 23 from this year.)

Okay, okay, so Sen. Reid fibbed about the numbers.  But, hey, percentage-wise, 77/145 is pretty close to 82/168!  So, other than the actual specific numbers, his claim is accurate, right?

Well, no.  Sen. Reid's claim is that Republicans "blocked" 82 nominees (really 77 nominees, as we have seen).  The problem with that claim is that almost none of these supposed filibusters (which may or may not be filibusters, as we have seen) actually went anywhere.  Let's return to Table 6.

Here, we see that many attempted filibusters were supported only by small minorities of the Republican caucus.  When cloture was invoked to end debate, those minorities were pummeled, with cloture usually winning overwhelming majorities of 70 senators or more (including at least one-third of Republicans).  That's not exactly obstructionism.  In many other cases, once cloture was invoked, Republicans simply allowed Democrats to go to a floor vote without forcing cloture, so the cloture motion was withdrawn without a vote.  It is impossible to argue that Republicans "blocked" nominations where they voluntarily closed debate and moved to an up-or-down vote.

Of the 77 cases Reid cites as attempted "filibusters," those two situations cover fully 65 of them!  Only 12 developed into genuine filibusters, where the Republican minority actually blocked progress on a nominee.  Those nominees were: Hagel, Cordray, Millett, Watt, Wilkins, Pillard, Halligan, Bacharach, Aponte, Liu, Becker, and Hayes.  Of these 12, 4 were confirmed anyway, after negotiations (Hagel, Aponte, Cole, and Hayes).

That leaves a grand total of 8 blocked Obama nominees, during five years of Democratic control of the Senate, or about 1.5 per year.  This is the real lie in Sen. Reid's infographic: not his abuse of cloture vote counts to measure filibusters, not his incomprehensibly bad counting, but his decision to change the meaning of the word "blocked" so that it means something completely different from what the English language says it means.

The last refuge of the Democrat apologist is the sad, plaintative wail: "But blocking 8 nominees is still completely unprecedented!"

This was once true.  For most of American history, blocking that many presidential nominees through the filibuster was totally unprecedented.  Through Ford, Abe Fortas was the only blocked nominee in history.  Reagan had no nominees blocked.  Clinton had two blocked.

But then President George W. Bush was elected, and, in 2003, Republicans finally took control of the Senate, which they would hold for only four years (Obama has already had five years of a friendly Senate).

During those four years, according to this CRS report, the very same CRS report Sen. Reid cited in his press release today, Democrats blocked 14 Bush nominees — most of them to circuit courts, which are far more important than the district judicial vacancies that the Democrats have been screaming about for the past several weeks. That's an average of 3.5 blocks per year, more than twice the rate of Republican blocks under Obama.  In total, cloture was invoked for 38 nominees during the Bush years, including Miguel Estrada, whose nomination went to an all-time record of 7 cloture votes.

Republicans were fools to allow this.  They ought to have nuked the filibuster when they had the chance, and packed the D.C. circuit and every other circuit with constitutional conservatives.  Miguel Estrada should be sitting on the Supreme Court today, not cooling his heels in private practice.

But, according to their own sources, Democrats' claim to a moral high ground in their smart tactical move today is utterly, laughably, demonstrably, damnably false.  They should quit it and admit this move for what it is: a cold, strategic, and very intelligent move inspired by the growing need to protect the frequently unconstitutional Democratic agenda from serious judicial scrutiny.

UPDATE 23 Nov 2013: Sen. Reid's office, informed that its count was simply incorrect, has issued a corrected graphic, clarifying that they intended to count not nominees, but cloture motions.  This explains the origin of their mysterious 168 number.  It fails to explain why they misused the CRS data to make their case, and continues to mislead as to the reality of blocked nominees, so there will be no follow-up to this post, which remains correct on all matters of substance.

CORRECTION 23 Nov 2013: Politifact has released a new CRS report sent to them by Sen. Reid's office.  This document allows us to amend three numbers in this post.

The new document shows that, excluding duplicates from prior Congresses, 23 Obama nominees faced cloture in the 113th Congress (not 21, as I originally stated).  This means that 77 Obama nominees have faced cloture overall (not 75), and 145 throughout history (not 143).  Our main mistake was missing the fact that Richard Griffin should have been counted twice, because he was nominated for two different positions in the 113th Congress, not clotured for the same position.  

The post has been updated. Although it does not affect our conclusions, the James J. Heaney Institute sincerely regrets even the smallest numeric error, especially in the course of a fact-check like this one.