Law & the Courts

E.J. Dionne’s Denial of Reality

In his Washington Post column today defending Senate Democrats’ vote to abolish the filibuster for presidential nominations, E.J. Dionne Jr. purports to be “seeing the world as it is.” But his vision is wildly distorted. Among other things:

1. Dionne contends that “it is simply undeniable that in the Obama years, conservatives have abused the filibuster in ways that liberals never dream of.” He tries to support that contention by citing Congressional Research Service data on cloture motions. But, in defiance of the CRS’s own warnings, Dionne is misusing the data he cites.

a. In the report that Dionne links to, the CRS emphasizes, “Cloture motions do not correspond with filibusters”:

Although cloture affords the Senate a means for overcoming a filibuster, it is erroneous to assume that cases in which cloture is sought are always the same as those in which a filibuster occurs. Filibusters may occur without cloture being sought, and cloture may be sought when no filibuster is taking place. The reason is that cloture is sought by supporters of a matter, whereas filibusters are conducted by its opponents.…

For [various] reasons [that the CRS report spells out], it would be a misuse of the following data, which identify nominations on which cloture was sought, to treat them as identifying nominations subjected to filibuster. [Pp. 2-3 (emphasis added).]

b. As the Washington Post’s Glenn Kessler observed in a column disputing the Left’s extravagant claims, Senate majority leader Harry Reid “often files cloture on multiple bills or nominations at once to speed things along even if no one is slowing things down.” (Emphasis added.) Thus, Dionne’s observation that a very high percentage of the cloture motions ever filed on nominations have “happened under Obama” may well say far more about Reid’s trigger-happy cloture finger than anything else. That impression would seem to be bolstered by a review of Table 6 of the CRS report, which shows that the vast majority of the cloture motions that Reid has filed during the Obama administration either have been withdrawn or have won strong Republican support.

And, of course, it’s very much in Reid’s partisan interest to manufacture a high number of cloture motions when he has so many dupes, willing or otherwise, ready to equate every such motion with a filibuster.

c. Dionne’s claims regarding judicial nominees are especially outrageous. A reader of Dionne’s column would have no idea that it was Senate Democrats who initiated the unprecedented campaign of judicial filibusters against President George W. Bush’s nominees in 2003.

Instead of looking at filed cloture motions, let’s look at defeated cloture motions. On this count, ten Bush 43 judicial nominees encountered a total of 20 defeated cloture motions in a period of two years. By contrast, over the nearly five years of the Obama administration, six Obama judicial nominees have suffered a total of seven defeated cloture motions. Plus, one of those six nominees, Robert Bacharach (Tenth Circuit), was defeated on cloture at the very end of July 2012 not as part of a filibuster against him but in an application of the Thurmond Rule on election-year action. (Bacharach was unanimously confirmed in February 2013.) So this data shows that ten Bush 43 nominees were filibustered, versus five Obama nominees.

In sum, what Dionne calls “simply undeniable” is simply false.

2. Reciting a leftist fantasy, Dionne contends that “the Bush v. Gore majority insisted that the principles invoked to decide the 2000 election in George W. Bush’s favor could not be used in any other case.” As I’ve previously explained, the entirely innocuous passage in Bush v. Gore on which Dionne’s fantasy is spun reads:

Our consideration is limited to the present circumstances, for the problem of equal protection in election processes generally presents many complexities.

In short, the majority warned against overreading its reasoning and misapplying it to different circumstances, but the justices nowhere “insisted that the principles … could not be used in any other case.”

3. In a remarkably un-self-aware passage, here’s how Dionne tries to explain away his opposition in 2005 to abolition of the filibuster (for judicial nominees only):

[W]hat animated my argument then is the same concern I have now: This era’s conservatives will use any means at their disposal to win control of the courts.

In other words, what reconciles Dionne’s position then and his contrary position now is his conviction that leftists should “use any means at their disposal to win control of the courts.”

4. Dionne complains that Republicans oppose President Obama’s three pending D.C. Circuit nominees “not on the merits” but “because [the nominees] might alter the circuit court’s philosophical balance.” But Senate Democrats insisted—correctly—throughout the Bush 43 years that considerations of judicial philosophy are part of the “merits” of a nominee. (Where they were and are wrong is in their understanding of sound judicial philosophy.) So the dichotomy that Dionne is positing is a false one.

Unlike Democrats opposing Bush 43 nominees, Republicans haven’t tried to camouflage their concerns about judicial philosophy by smearing Obama’s nominees. That ought to be a major point to their credit, not the basis for a contrived claim that they have no “merits” objections.

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