Asked if he would support a filibuster of President Donald Trump’s Supreme Court nominee, Sen. Bernie Sanders said President Barack “Obama’s nominations required 60 votes.” It’s true that Obama’s Supreme Court nominees received 60 votes, but it wasn’t “required.”
A confirmation vote for a Supreme Court nominee requires only a simple majority, or 51 votes. But it takes three-fifths of the full Senate, or 60 votes, to end a filibuster, and that wasn’t necessary for the two Supreme Court justices appointed by Obama.
Jake Tapper, the show’s host, asked Sanders if he would support Democratic Sen. Jeff Merkley’s threat to filibuster Gorsuch’s nomination. The Oregon senator accused Senate Republicans of “stealing a seat” after the Senate GOP leaders refused last year to hold hearings on Merrick Garland, who was nominated by Obama in March 2016.
In order to end a filibuster on Gorsuch’s nomination, Senate Majority Leader Mitch McConnell could file a cloture motion to end debate and bring the nomination to a vote — but that would require 60 votes and the Republicans control only 52 seats.
Sanders told Tapper that Gorsuch’s nomination “should require 60 votes and a very serious debate.”
Tapper, Feb. 5: So, you are going to be joining Jeff Merkley in requiring 60 votes cut off any sort of filibuster?
Sanders: Look, Obama’s nominations required 60 votes. So should Trump’s, absolutely.
But that was not the case for the two Supreme Court justices nominated by Obama and approved by the Senate. Both were confirmed in the 111th Congress, when the Democrats controlled the Senate: Sonia Sotomayor on Aug. 6, 2009, and Elena Kagan on Aug. 5, 2010. The Senate website lists all cloture motions filed in the 111th Congress, and no cloture motions were filed for either nominee.
In Kagan’s case, then Senate Majority Leader Harry Reid threatened to file a cloture motion during a floor speech on Aug. 3, 2010, because he was concerned that one Republican member might delay a scheduled vote on Kagan.
But McConnell, the minority leader at the time, called it “completely unnecessary.” Alabama Sen. Jeff Sessions, who at the time was ranking Republican on the Senate Judiciary Committee, also objected, saying a cloture vote would allow the Democrats in the future to falsely accuse the Republicans of filibustering a Supreme Court nomination.
“Well, I just do not want somebody to come back and say in the future that we had to file cloture to get a vote on this nomination, and you filibustered this nomination,” Sessions said. “I feel pretty strongly about that and am a bit uneasy that the leader has felt he needed to do this.”
By the end of the exchange, Reid announced he would not file the cloture motion.
“So here is what I will do: I have not filed this motion yet. Based on the statement of my friend from Alabama and my friend the Republican leader, I will just hold this in abeyance.” He added, “I will see if this is necessary some other time.”
It wasn’t necessary. Kagan needed a simple majority to be confirmed, and she was approved two days later by a 63-37 vote. She received the support of five Republicans.
Later in the CNN interview, Sanders repeated that “Obama had to get 60 votes.” He went on to say, “That’s the rules of the United States. And if 60 people vote to confirm Judge Gorsuch, he will become the next nominee. That is the process. Those are the rules that we operate under.”
It’s true that Senate rules since 1949 have permitted the use of cloture on presidential nominations, according to a report by the nonpartisan Congressional Research Service. But a cloture vote on a Supreme Court nomination is rare. In fact, it has happened only four times since 1949, the CRS report said.
The last time it happened was in 2006, when President George W. Bush nominated Samuel Alito to the highest court. Then-Sen. Barack Obama was among the Democrats who attempted to filibuster Alito — a decision Obama said he regretted when he became president.
In Alito’s case, the cloture motion passed 72-25 on Jan. 30, 2006, ending the floor debate and allowing the Senate to vote to confirm Alito by a simple majority.
“I am pleased that a strong, bipartisan majority in the Senate decisively rejected attempts to obstruct and filibuster an up-or-down vote on Judge Sam Alito’s nomination,” Bush said in a statement after the cloture vote passed. “The Senate has a constitutional responsibility to hold an up-or-down vote on every judicial nominee – and throughout its 216-year history, the Senate has held an up-or-down vote on every Supreme Court nominee with majority Senate support.”
A day later, Alito was confirmed 58-42 with four Democrats voting yes.