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.

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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.)

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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.”

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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.

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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.

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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.

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Baldwin earns Two Pinocchios.

Two Pinocchios

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