Bench Memos

Law & the Courts

Senator Schumer’s Washington Post Handmaidens

Habituated as I am to the Washington Post’s left-wing bias, I’m still surprised by particular glaring instances. Take, for example, today’s front-page article, written by Robert Barnes, Ed O’Keefe, and Ann E. Marimow, on Senator Schumer’s filibuster threat against Supreme Court nominee Neil Gorsuch.

The article is titled (in the print edition) “Filibuster against Gorsuch promised.” It asserts early on:

Republicans have vowed Gorsuch will be confirmed even if it means overhauling the way justices have long been approved. Traditionally, senators can force the Senate to muster a supermajority just to bring up the nomination of a Supreme Court justice. [Emphasis added.]

It later observes that “the 60-vote threshold has not caused a problem” for recent Supreme Court nominees.

Some observations:

1. What a strange headline. (I presume that the editors, not the reporters, are responsible for the headline.)

Filibusters aren’t usually “promised” (a word with very positive connotations); they’re threatened. Indeed, my quick Lexis search on WaPo articles over the last 10 years has filibuster associated with threat some 85 times, compared to a mere three for promise. (My search included cognates of the three words.)

To be sure, every threat could be recast as a promise (“the kidnapper promised to kill his hostage”), but the usual parlance is that filibusters are threatened.

And, no, the headline can’t be defended on the ground that Senator Schumer’s statement has gone beyond a threat. Indeed, the carryover headline (on page A5) sensibly speaks of “Filibuster threat….”

The passive voice in the headline is also odd. Why not “Schumer threatens Gorsuch filibuster”? I’m guessing that the answer is that the headline editors sensed that it wouldn’t poll as favorably.

2. The passage indented above gets the Senate tradition exactly backwards. Yes, Senate rules have since 1949 nominally allowed cloture votes on Supreme Court nominees. (And, of course, they allowed the same thing for lower-court and executive-branch nominations up until Democrats abolished the filibuster for those nominations in November 2013.) But the tradition under those rules is that cloture votes have been rare—which is all the more remarkable since any single senator has the power to insist on a cloture vote.

According to the Washington Post’s Glenn Kessler, there have been only four cloture votes on Supreme Court nominees (among the more than 30 nominations to reach the Senate floor since 1949): In 1968, the bipartisan negative votes on cloture blocked LBJ’s effort to elevate Abe Fortas to chief justice. In 1971, a motion to invoke cloture on Nixon’s nomination of William H. Rehnquist failed, but a final merits vote on the nominations was allowed that same day. (That would indicate that the cloture vote wasn’t part of a filibuster effort but was instead done for other reasons, but I haven’t researched the matter.) In 1986, Democrats failed to block cloture on Reagan’s elevation of Rehnquist to chief justice. And in 2006, the Democrats’ filibuster effort against the Alito nomination failed.

In short, the reporters confusingly—and, it seems to me, artfully—misuse “Traditionally” to refer to what the Senate rules allow rather than to the actual practice under those rules.

3. On an accurate understanding of the Senate’s dominant traditional practice, abolition of the filibuster for Supreme Court nominees, far from “overhauling the way justices have long been approved,” would ensure the continuation of that traditional practice.

4. By speaking of a supposed “60-vote threshold” and measuring recent nominees’ final confirmation votes against that supposed threshold, the reporters buy into the very spin that Senate Democrats have been making—and that their own WaPo colleague Glenn Kessler has punished with Two Pinocchios.

5. The bigger picture here is that Senate Democrats have been trying to lay the groundwork to depict their extraordinary potential filibuster as something ordinary—and to paint Republicans as the aggressors for moving to abolish the Supreme Court filibuster. Their goal, of course, is to lower the political costs of filibustering the Gorsuch nomination and to raise the political costs for Republicans to abolish the filibuster.

Barnes, O’Keefe, and Marimow have shown themselves to be eager handmaidens of the Democrats.


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