Durbin oversimplifies Supreme Court voting process

The morning after President Donald Trump announced Judge Neil Gorsuch as his nominee to fill the vacant seat on the U.S. Supreme Court, Sen. Dick Durbin, D-Ill., appeared on MSNBC’s Morning Joe to share his thoughts about the president’s pick.

Durbin, the Democratic whip and member of the Senate Judiciary Committee, said in the interview he believes Gorsuch should have a hearing, but that the nominee also should meet the required voting standard.

"(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," Durbin told the show’s hosts.

With Senate Republicans considering the so-called "nuclear option" to lower the vote threshold needed to confirm Gorsuch, we decided to double-check Durbin’s declaration.

Durbin has a point, but he does oversimplifies the process for Senate votes on Supreme Court nominees. Notably, a formal confirmation vote does not require 60 votes.

Voting standard?

Of the nearly 4,000 government positions Trump must fill, 1,212 require a Senate confirmation.

That includes all Cabinet-level posts as well as hundreds of other senior positions and agency heads.

Here’s how the confirmation process will work for Gorsuch: He will testify in a hearing before the Senate Judiciary Committee. If the committee refers his nomination to the full Senate (a likely outcome due to the Republican majority on the Judiciary Committee), a vote by the full Senate needs to be taken. The Senate majority leader moves to take the Senate into an executive session, the setting in which nominees are confirmed, according to Worth Hester, the assistant director of the Georgetown Government Affairs Institute.

Then, the Senate majority leader needs to bring a nominee to a vote by the full Senate. In Gorsuch’s case, barring any outstanding circumstances, Sen. Mitch McConnell, R-Ky., will either get unanimous consent, a process by which every senator agrees to schedule a vote on a nominee. However, if unanimous consent cannot be reached, and if at least one senator filibusters, Sen. McConnell would need to invoke cloture.

A "cloture vote," agrees to place a time limit on the consideration of a nominee. A successful cloture requires 60 votes. After the cloture vote, Senate rules allow for 30 additional hours of debate, and then a final confirmation vote occurs, according to Sarah Binder, political scientist at George Washington University and senior fellow at the Brookings Institution.

This confirmation process for some positions became less burdensome thanks to a rule change on Nov. 21, 2013.

With the Senate’s Republican minority blocking President Barack Obama’s nominees for executive branch positions and, in particular, appeals court judges, then-Majority Leader Harry Reid, D-Nev., triggered the so-called nuclear option by a successful 52-48 vote, eliminating the 60-vote threshold needed to confirm most nominations, and with it, the threat of a filibuster.

The rule change, however, excluded Supreme Court nominees, meaning that such nominations could be filibustered. And that’s something that some Democrats have threatened  to do against the Gorsuch nomination. The Republicans currently hold 52 seats in the Senate -- enough to reach the final vote threshold of 51 votes, but only if they can get that far.

Now that we’ve addressed some background information about the nuclear option and current situation at hand, let’s take a look at Durbin’s claim.

Nomination and confirmation of Justices Sonia Sotomayor and Elena Kagan

Following the election of Obama in November 2008, Democrats controlled both chambers of Congress and essentially held 59 seats in the Senate because two independents caucused with them.

In May 2009, Obama nominated U.S. 2nd Circuit Court of Appeals Judge Sonia Sotomayor of New York for the Supreme Court to replace retiring Justice David Souter.

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Barack Obama

stated on May 26, 2009 in a speech at the White House.

"Walking in the door (Sonia Sotomayor) would bring more experience on the bench, and more varied experience on the bench, than anyone currently serving on the United States Supreme Court had when they were appointed."

Senate Judiciary Committee hearings began on June 1 of that year, and Sotomayor was confirmed by a vote of 68-31 on Aug. 6.

Democratic Sen. Ted Kennedy of Massachusetts did not vote. He died on Aug. 25 -- 15 months after being diagnosed with brain cancer. If Kennedy had been present for the vote, Senate Democrats would have had a filibuster-proof majority. But that didn’t matter because nine Republicans voted to confirm Sotomayor.

Then almost exactly one year later, Obama’s nominee to replace retiring Justice John Paul Stevens, U.S. Solicitor General Elena Kagan, was confirmed by the Senate on Aug. 6 in a 63-37 vote, with five Republicans voting in favor and one Democrat, former Sen. Ben Nelson of Nebraska, voting against.

During the confirmation of both Sotomayor and Kagan, Democrats had a comfortable majority that was near filibuster-proof if not for the absence of Kennedy in August 2009 and the lone dissenting Democratic vote by Nelson in August 2010.

On the surface, the margins achieved by Sotomayor and Kagan would seem to support Durbin’s argument that the confirmations required 60 votes. However, it’s more complicated than that. The nominations were never filibustered, so no 60-vote cloture motion was required. And the final confirmation required only 51 votes. In fact, two sitting justices -- Samuel Alito and Clarence Thomas -- never reached 60 votes in their final tally.

The key word that trips up Durbin is "standard." The existing Senate "standard" says nothing about reaching 60 votes. If the standard for passing a class is earning a C, and someone gets a B, it doesn’t mean that a B was required to pass the class. The "standard" to pass the class is still a C.

Whether this longstanding standard lasts into the future, given the degree of polarization in Congress today, is another question entirely.

Our rating

In an interview on MSNBC’s Morning Joe show, Durbin said Obama’s nominees met a standard of 60 votes, "a standard that was met by Elena Kagan as well as Sonia Sotomayor, President Obama's choices."

Obama’s nominees cleared the procedural hurdles and won 60 votes and then some. The Senate confirmed Kagan by a roll call vote of 63-37 in 2010, and Sotomayor was confirmed in 2009 by a vote of 68-31.

Kagan and Sotomayor ultimately would have had enough votes to be able to break a filibuster, but they never had to -- and the margins they got on the final, simple-majority vote can’t be used to retroactively define what the "standard" was.

We rate the statement Half True.

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Says President Barack Obama’s nominees met a standard of 60 votes, "a standard that was met by Elena Kagan as well as Sonia Sotomayor, President Obama's choices."

Richard Durbin

U.S. Senator

in an interview on MSNBC's Morning Joe

Wednesday, February 1, 2017

02/01/2017

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