Bench Memos

NYT Goes Full Circle on Filibusters

On Sunday, the New York Times, in a house editorial entitled “Filibustering Nominees Must End,” embraced President Obama’s call, in his State of the Union address last week, for the Senate to change its rules to require votes on judicial (and executive) nominees within 90 days.

In its editorial, the NYT admits that its stance against the judicial filibuster “is a major change of position for us.” Actually, it’s the NYT’s second 180-degree reversal on filibusters. See if you can detect a pattern:

In 1995, when Bill Clinton was president and the filibuster was being used only against legislation and executive-branch nominees, the NYT (in “Time to Retire the Filibuster”) called for the Senate “to get rid of an archaic rule that frustrates democracy and serves no purpose.”

But in a dozen or so editorials between 2003 and 2006 (gee, who was president then?), even while recognizing that “the filibuster has not traditionally been used to stop judicial confirmations,” the NYT supported its use against Bush 43 nominees and hailed its existence as “go[ing] to the center of the peculiar but effective form of government America cherishes.” Indeed, the NYT said it had learned its lesson since its 1995 editorial:

To see the filibuster fully, it’s obviously a good idea to have to live on both sides of it. We hope acknowledging our own error may remind some wavering Republican senators that someday they, too, will be on the other side and in need of all the protections the Senate rules can provide.

Now, in 2012, the NYT opposes Republican senators having “all the protections the Senate rules can provide.”

The two examples that the NYT cites of victims of the judicial filibuster are also telling. The NYT claims that Ninth Circuit nominee Goodwin Liu was “entirely in the legal mainstream”—a proposition that Liu’s record belies and that Obama himself has implicitly abandoned. By contrast, the only Republican victim it will say that Democrats wrongly “used the filibuster” against is Sixth Circuit judge Jeffrey Sutton. But Sutton’s nomination wasn’t filibustered: although it faced procedural obstruction and received 41 votes against, it was never subject to a cloture vote.

Misidentifying Sutton as a victim of the filibuster enables the NYT to pose as bipartisan while sparing it the trouble of actually identifying a single filibustered Bush 43 judicial nominee whom it now believes shouldn’t have been filibustered. That should make it easier for the NYT to do another about-face the next time a Republican president is making judicial nominations.

As I have made clear repeatedly over the years, I would welcome an end to the filibuster of judicial nominees. But I don’t think that goal is advanced by the NYT’s transparently partisan posturing.

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