Flip-flopping on the filibuster

Last updated on Friday, November 22nd, 2013 at 6:12 p.m.

Weary of delaying tactics that prevented President Barack Obama’s nominees from being confirmed, Senate Democrats changed Senate rules on Thursday in hopes of speeding up confirmation.

Senate Majority Leader Harry Reid, D-Nev., spearheaded the change so that Obama’s appointments will only require 50 votes instead of 60 to get through the confirmation process. Currently, Democrats control 55 Senate votes while Republicans have 45.

We couldn’t help noticing that some prominent leaders from both parties have changed position compared with where things stood in 2005, when the shoe was on the other foot.

Back then, President George W. Bush had recently won a second term, and his fellow Republicans had a majority in the Senate. The Democratic minority was filibustering a number of Bush’s judicial appointments, and it was Republicans who were considering the "nuclear option" that would allow them to confirm judges with a simple majority.

The Republicans didn’t go through with that, but the differences in the public comments then and now are stark.

We put Reid, Obama and Senate minority leader Mitch McConnell on our Flip-O-Meter and rated each leader’s change of position a Full Flop.

We’ve also fact-checked several claims about filibusters here at PolitiFact. The details behind the Senate procedures are complex, and it’s not easy to come up with a straightforward measurement to quantify delays.

Here are highlights from a few of our key fact-checks:

• On social media, Reid promoted a graphic showing filibusters are on the rise during the Obama administration. "In the history of the United States, 168 presidential nominees have been filibustered, 82 blocked under President Obama, 86 blocked under all the other presidents." We found Reid mischaracterized the filibusters -- he was counting cloture votes, not individual nominees. After PolitiFact asked about the discrepancy, his office changed the graphic. By our calculation, there were actually 68 individual nominees blocked prior to Obama taking office and 79 (so far) during Obama’s term, for a total of 147. Reid’s point is actually a bit stronger using these these revised numbers. We rated the statement Mostly True.

• McConnell is facing political attacks back home for his role in leading Republican opposition to Obama’s agenda. His Democratic opponent is Alison Lundergan Grimes, and a recent ad of hers tagged McConnell as "guardian of gridlock," noting that "he’s blocked the Senate over 400 times."

We looked into how filibusters are counted and found that the metric the ad uses -- the number of cloture votes filed -- in an imperfect way of trying to count up obstruction. It may overcount the obstruction, but it’s possible it undercounts it as well. We rated the statement Half True.

• McConnell defended himself from charges of obstruction during a July interview on Meet the Press. "The president has had 1,540 of his nominations confirmed, only four defeated."

McConnell’s numbers weren’t off, but his count ignores nominees who withdrew before a vote, including 38 people who withdrew after facing opposition. The numbers also don’t account for people who were never formally nominated because of early opposition. We rated his statement Half True.

• Republicans have focused some of their opposition on Obama’s nominees to an influential federal court, the U.S. Court of Appeals for the D.C. Circuit. They say that the the court doesn’t need a full complement of judges to get its work done.

Sen. Charles Grassley, R-Iowa, made this claim in a June statement. "It’s hard to imagine the rationale for nominating three judges at once for this court given the many vacant emergency seats across the country, unless your goal is to pack the court to advance a certain policy agenda."

We looked at whether Obama’s nominations could accurately be described as court packing. We found that genuine court packing has involved one branch of government proposing changes the structure of the courts by either expanding or decreasing the number of judges. That's not what Obama's doing. We rated the claim False.

• Sen. John Cornyn, R-Texas, claimed that Democrats have exaggerated the level of opposition to Obama’s nominees, using the case of Defense Secretary Chuck Hagel as an example. "This is not any attempt to kill this nomination. This is not a filibuster," Sen. John Cornyn, R-Texas, said during floor debate in February. "I realize it is the headline the majority leader would like the newspapers to write."

Rather than trying to kill the nomination, Cornyn said, senators simply wanted more information. Still, the way Hagel’s confirmation was handled seemed designed to delay, and we found a failed vote on Feb. 14 that clearly stopped the nomination from moving forward. Overall, we rated Cornyn’s statement Mostly False.

• Obama complained during a June press conference that his nominees were being subjected to undue delays. "My judicial nominees have waited three times longer to receive confirmation votes than those of my Republican predecessor," he said.

That’s true if you count waiting time from committee approval to confirmation, but not if you count the full period from nomination to confirmation. As it turns out, the average wait for George W. Bush’s circuit court nominees was actually longer from nomination to confirmation. We rated his statement Half True.