Bench Memos

Distorted NYT Article on D.C. Circuit Nominations and Filibusters

This front-page article in Saturday’s New York Times on the supposed broader significance of the filibuster of Caitlin Halligan’s nomination to the D.C. Circuit is little more than a regurgitation of Senate Democrats’ one-sided talking points. Let’s look at the distortions:

1. The opening sentence states that Senate Republicans have “so far block[ed] President Obama from filling any of the four vacancies” on the D.C. Circuit. A reader might reasonably infer that Obama has made four nominations to the D.C. Circuit, and nothing in the article would dispel that mistaken inference. In fact, Obama has made only two nominations, and the Democratic chairman of the Senate Judiciary Committee, Pat Leahy, has held a hearing on only one of them (Halligan). More generally, Obama’s whole approach to the D.C. Circuit has been a series of Keystone Kops capers. In sum, it would be much more accurate, and much less prone to mistaken inferences, to state simply that Senate Republicans have so far blocked the Halligan nomination.

2. The article propagates the myth that the long-expired “Gang of 14 agreement” from May 2005 “became informal Senate policy.” That myth is patently false, as I explained in detail in two posts (Part 1 and  Part 2) over a year ago. I’ll limit myself here to these points:

a. Senator Leahy, then-senator Obama, and other Democrats who were not signatories to the Gang of 14 agreement never regarded that agreement as somehow limiting their freedom to filibuster judicial nominees. That explains how they voted against cloture on the three pending nominees (Brown, Pryor, and Owen) who were specifically named in the agreement and how 33 Democrats (not including Obama, as it happens) voted against, or failed to support, cloture on the nomination of Brett Kavanaugh to the D.C. Circuit.

b. After the agreement expired at the end of 2006, there is no reason that any signatory (much less any non-signatory) would have regarded it as binding. Thus, in October 2007, one Democratic signatory, Senator Landrieu, joined many Democrats (including Leahy and Obama) in voting against cloture on the nomination of Leslie Southwick to the Fifth Circuit—a nomination that no one could plausibly claim presented “exceptional circumstances” (insofar as that term can be thought to have any meaning).

3. The article would leave the trusting reader thinking that Senate Republicans have escalated the use of the filibuster against judicial nominees. In fact, Republicans have so far used the filibuster to defeat one nomination (Goodwin Liu’s), to block another (Halligan’s), and to apply the Thurmond Rule to prevent election-year action on a third (Robert Bacharach), who was recently confirmed. By contrast, Senate Democrats defeated cloture petitions on ten of President George W. Bush’s appellate nominees, ultimately defeating five of those nominations and delaying by years the confirmations of the five others.

4. The notion (also in the article’s first sentence) that there is a broader “fresh feud over federal judgeships” is belied by the facts. At this point in President Bush’s second term, the Senate had confirmed no judges. The Senate this year has already confirmed four judicial nominations, including two for the appellate courts, and it will today confirm two more, including one more appellate judge. 


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