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Fact-Checkers Working Overtime to Debunk Baldwin’s Misleading #SCOTUS Rhetoric

Two separate fact checks on two separate issues this AM find that Tammy Baldwin is being disingenuous in her claims about the SCOTUS debate.

  • Meanwhile, PolitiFact gives Baldwin the rare “Full Flop” for previously supporting a speedy confirmation process for SCOTUS nominees and now trying to obstruct the current nomination
WaPo (Fact Checker): Democrats Persist With The Slippery Claim Of A ’60-Vote Standard’ For Supreme Court Nominees
Glenn Kessler
Feb. 22, 2017

“One of things I talked with him [Supreme Court nominee Neil Gorsuch] about is the standard which every other Supreme Court nominee has had to meet, and that is earning 60 bipartisan votes in the United States Senate.”
— Sen. Tammy Baldwin (D-Wis.), interview with “UpFront with Mike Gousha,” Feb. 18, 2017

A reader pointed out this statement by Baldwin, noting that it appeared to be a repeat of the misleading Democratic talking point in the battle over President Trump’s nomination of Neil Gorsuch to the Supreme Court.

Time for a refresher course!

The Facts

As we have noted before, there is no Senate “standard” that a nominee must have 60 votes for confirmation. But, under current Senate rules, it takes 60 votes (three-fifths of the Senate) to end debate on most legislation. Until Democrats changed the rules in 2013, it also took 60 votes to end debate on executive branch and most judicial nominations.

The Democratic rule change did not include Supreme Court nominations. But that would be a rare maneuver.

(A filibuster generally refers to extended debate that delays a vote on a pending matter, while cloture is a device to end debate. Filibusters are used by opponents of a nominee or legislation, while cloture is filed by supporters to end debate.)

The last Supreme Court nominee who faced a cloture vote was Samuel A. Alito Jr. in 2006. He won it handily, 72 to 25. After the cloture vote, senators voted on whether to confirm Alito. The vote was 58 to 42. (He earned the support of four Democrats, but was opposed by one Republican and one Republican-turned-Independent.)

Although the effort to filibuster Alito failed miserably, it served as a vehicle for potential White House contenders (such as Hillary Clinton, Barack Obama and Joe Biden) to demonstrate their liberal credentials. Obama, as president, later regretted supporting the filibuster of Alito, what his spokesman called a “symbolic vote.”

There have been three other cloture votes concerning the Supreme Court, two involving William H. Rehnquist, the late chief justice. In 1971, a motion to invoke cloture for his initial appointment to the court failed by a vote of 52 to 42, but he was nevertheless confirmed later that day, 68 to 26. When Rehnquist was nominated to become chief justice in 1986, he was confirmed 65 to 33 after cloture was also invoked by a vote of 68 to 31.

The only other cloture vote concerned Lyndon B. Johnson’s 1968 nomination of Abe Fortas, at the time an associate justice, to be chief justice. The Fortas nomination eventually ran aground on ethics issues and his close relationship with Johnson, already a lame duck, and he eventually withdrew after his nomination failed a cloture vote. At the time, Senate rules required approval of two-thirds of the Senate to end debate — and Fortas could achieve only a vote of 45 to 43.

Here are the final votes for the current members of the court. We have noted in bold the two sitting justices who did not receive 60 votes for confirmation.

Elena Kagan: 63 to 37 (2010)
Sonia Sotomayor: 68 to 31 (2009)
Samuel A. Alito Jr.: 58 to 42 (2006)
John G. Roberts Jr.: 78 to 22 (2005)
Stephen G. Breyer: 87 to 9 (1994)
Ruth Bader Ginsburg: 96 to 3 (1993)
Clarence Thomas: 52 to 48 (1991)
Anthony M. Kennedy: 97 to 0 (1988)

John Kraus, communications director for Baldwin, said: “While it wasn’t explicit, she was referring to Supreme Court justices appointed by both Republican and Democratic presidents, the last six of which earned 60 votes, including the most recent Obama nominees, Justices Sotomayor and Kagan.”

Democrats such as Baldwin appear to be arguing that because Alito received more than 60 votes on the vote to end debate, he met the “60-vote” standard, even though he did not receive 60 votes for confirmation. But Baldwin, in her interview, referred to “earning 60 bipartisan votes in the United States Senate,” which certainly sounds different from a mere cloture vote.

The Pinocchio Test

Democrats continue to be slippery with their language. Sixty votes is not “a standard” for Supreme Court confirmations, as two of the current justices on the court did not meet that supposed standard to get on the court.

Baldwin earns Two Pinocchios.

Two Pinocchios

PolitiFact: Tammy Baldwin Changes Views On How Quickly To Act On A Supreme Court Nomination
Eric Litke
Feb. 22, 2017

Wisconsin’s Tammy Baldwin was one of many U.S. Senators who abruptly switched from offense to defense in the wake of President Donald Trump’s inauguration.

The contrast has been particularly sharp when it comes to Supreme Court nominees.

Baldwin, a Democrat, was a vocal supporter of Merrick Garland, President Barack Obama’s nominee, but was quick to push back against Trump’s nomination of Neil Gorsuch.

When Garland was nominated in March 2016, Republicans moved to block his nomination, which prompted the ire of Democrats.

Baldwin declared: “It’s the constitutional duty of the president to select a Supreme Court nominee, and the Senate has a responsibility to give that nominee a fair consideration with a timely hearing and a timely vote.”

Baldwin also tweeted in May 2016 that Garland deserved “an up or down vote,” adding the hashtag #doyourjob.

Since the Republican-led Senate never held a confirmation hearing or vote for Garland, the seat remained open for Trump to fill. He announced Gorsuch as that pick Jan. 31, 2017.

Two days later, Baldwin told the Milwaukee Journal Sentinel that she would support a filibuster to block the Gorsuch nomination, would vote against the Senate action required to block a filibuster and would vote against Gorsuch if he made it to a final vote.

Is that consistent with her position on Garland’s nomination that the Senate should vote for a nominee in a timely manner?

We thought that was a question for the Flip-O-Meter, which examines whether a politician has been consistent on an issue.

Not all votes created equal

The Garland and Gorsuch nominations came up in dramatically different contexts — one a nominee late in a lame duck presidency, the other immediately after a highly divisive campaign.

Baldwin — like most other senators — switched sides between the two nominees.

In an email, Baldwin spokesman John Kraus said the senator’s position is consistent because she supported a hearing, a committee vote and a floor vote for both nominees.

But the voting claim isn’t quite that simple.

Figuring this out means diving into Senate rules of procedure.

When the minority party filibusters an initiative, as many Democrats have pledged to do with the Gorsuch nomination, the majority party can force a vote through a procedure called cloture. This effectively ends the filibuster by limiting the debate to 30 more hours.

For cloture to pass, it must be supported by 60 of the 100 senators.

That creates a higher threshold for nomination.

Gorsuch would otherwise need only a majority to be approved — and the Republicans hold that majority. Cloture is unusual but not unprecedented, having been used four times for Supreme Court nominees since 1968.

Kraus said Baldwin is consistent because she “supports” a cloture vote, even though she would vote against Gorsuch in that vote.

But cloture is a maneuver executed by the majority party (Republicans in this case), so Baldwin’s “support” for that is both unnecessary and irrelevant.

(Cloture and the 60-vote threshold itself could also become irrelevant if Republicans choose to use what has been termed the “nuclear option,” a parliamentary procedure by which they can use majority votes to override the requirement for a supermajority, effectively overcoming a filibuster with just 51 votes. Democrats did this to push through Obama’s lower court appointments in 2013, but it hasn’t been used for a Supreme Court nominee.)

Baldwin said during the Garland process the Senate should give him “fair consideration,” and she pledged the same thing to Gorsuch in a statement issued the day of his nomination.

Two days later she announced plans to vote against Gorsuch, before meeting with him or participating in any hearing process.

Gov. Scott Walker labeled Baldwin a hypocrite on Twitter for telling others to meet with Garland but deciding on Gorsuch before meeting with him.

But Kraus said Baldwin had reviewed the backgrounds and records of Gorsuch and other finalists before Trump’s announcement.

He said that allowed time to give fair consideration before deciding she would oppose Gorsuch due to a “record of ruling against disabled students, against workers and against women’s reproductive health care.”

Our rating

When Baldwin’s party put forth a Supreme Court nominee, she advocated for a “timely vote” and an “up or down vote.” A common-sense interpretation is that she wanted a final nomination vote, where passing meant being approved by the Senate.

But now that Baldwin is in the minority and facing a Republican nominee, she is supporting a filibuster that creates a roadblock to reaching that final vote. Her claim to “support” a cloture vote makes no sense since that isn’t up to her party — cloture would be pushed by Republicans and is only needed if Baldwin and other Democrats pursue a filibuster.

And that cloture vote would only advance the process, not result in a final decision on Gorsuch.

That’s what we call a Full Flop.

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