Top 10 Filibuster Falsehoods
Media Matters rebuts ten common arguments against Democrats's use of the filibuster:
Falsehood #7: Filibustering judicial nominees is unconstitutional
Another argument made by those supporting the "nuclear option" is that filibustering judicial nominees is unconstitutional. In fact, the Constitution makes no mention of filibusters, but it explicitly empowers the Senate to determine its own rules. Senate rules allow for unlimited debate on any subject, including judicial nominees. Rule XXII of the Standing Rules of the Senate, which governs debate and filibusters, explicitly states that the rules apply to "any measure, motion, [or] other matter pending before the Senate," including judicial nominations. In response to a May 12 question from Sen. Robert Byrd (D-WV) on the Senate floor, Frist acknowledged that the Constitution does not require an up-or-down vote for all judicial nominees: "To the question, does the Constitution say that every nominee of the President deserves an up-or-down vote, the answer is, no, the language is not there."
Falsehood #7: Filibustering judicial nominees is unconstitutional
Another argument made by those supporting the "nuclear option" is that filibustering judicial nominees is unconstitutional. In fact, the Constitution makes no mention of filibusters, but it explicitly empowers the Senate to determine its own rules. Senate rules allow for unlimited debate on any subject, including judicial nominees. Rule XXII of the Standing Rules of the Senate, which governs debate and filibusters, explicitly states that the rules apply to "any measure, motion, [or] other matter pending before the Senate," including judicial nominations. In response to a May 12 question from Sen. Robert Byrd (D-WV) on the Senate floor, Frist acknowledged that the Constitution does not require an up-or-down vote for all judicial nominees: "To the question, does the Constitution say that every nominee of the President deserves an up-or-down vote, the answer is, no, the language is not there."
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The Top 10 filibuster falsehoods ... [Media Matters for America]
The Top 10 filibuster falsehoods
With Senate debate on two of President Bush's most controversial judicial nominees beginning May 18, the heated rhetoric over the so-called "nuclear option" to ban Senate filibusters on judicial nominations has reached its boiling point. The rules of the Senate thus far remain intact, but filibuster opponents have pulled all rhetorical stops, advancing numerous falsehoods and distortions, and, as Media Matters for America documents below, the media have too often perpetuated that misinformation by unskeptically, and sometimes even deliberately, repeating it.
Falsehood #1: Democrats' filibuster of Bush nominees is "unprecedented"
The most prevalent talking point put forth by advocates of the "nuclear option" is that Democratic filibusters of 10 of President Bush's judicial nominees are "unprecedented" in American history.
But Republicans initiated a filibuster against a judicial nominee in 1968, forcing Democratic president Lyndon Johnson to withdraw the nomination of Associate Supreme Court Justice Abe Fortas to be chief justice. Then-Sen. Robert Griffin (R-MI) recognized at the time that denying nominees a vote was already an established practice. "It is important to realize that it has not been unusual for the Senate to indicate its lack of approval for a nomination by just making sure that it never came to a vote on the merits. As I said, 21 nominations to the court have failed to win Senate approval. But only nine of that number were rejected on a direct, up-and-down vote," Griffin said, according to a May 10 New York Times op-ed by former Senate Majority Leader George Mitchell (D-ME).
Cloture votes were also necessary to obtain floor votes on Clinton judicial nominees Richard A. Paez and Marsha L. Berzon in 2000, and Republicans attempted to filibuster the nomination of U.S. District Judge H. Lee Sarokin to the 3rd U.S. Circuit Court of Appeals in 1994. Senate Majority Leader Bill Frist (R-TN), who is leading the Republican opposition to Democratic filibusters, voted against cloture for the Paez nomination.
And these are merely instances when Republicans filibustered Democratic presidents' judicial nominees. The Republican-controlled Senate blocked approximately 60 Clinton nominees through other means. This included strict enforcement under Clinton of the "blue slip" policy, which at the time allowed a senator from a nominee's home state to block a nominee simply by failing to turn in the blue-colored approval papers required for the nomination process. While Judiciary Chairman Orrin Hatch (R-UT) strictly adhered to the "blue slip" policy to allow Republicans to block Clinton nominees, he relaxed the policy nearly to the point of elimination in his efforts to push through Bush's nominees.
For example, Hatch held committee votes on the nominations of 9th U.S. Circuit Court of Appeals nominee Carolyn B. Kuhl over the objections of Sen. Barbara Boxer (D-CA), as well as four 6th Circuit nominees over their home state senators' objections.
Because of these numerous responses to Falsehood #1, proponents have honed their message in order to continue arguing that the present Democratic effort is "unprecedented." The argument has now been reduced to: It is unprecedented for a nominee to be blocked who 1) has clear majority support in the Senate; 2) has actually reached the Senate floor for an up-or-down vote; and 3) did not ultimately get confirmed after being filibustered.
The "clear majority" qualifier is designed to discount Fortas, even though "[i]t is impossible to gauge the exact support for Fortas because 12 senators were absent for the 'cloture' or 'closure' vote, which failed to halt the filibuster," as the Washington Post noted on March 18. The qualifier that a nominee reach the Senate floor disregards the approximately 60 Clinton nominees whom the Republican-led Senate blocked in committee. The qualifier that the filibuster be ultimately successful gets around Republican efforts to filibuster Paez and Berzon, who eventually won Senate confirmation.
Falsehood #2: Bush's filibustered nominees have all been rated well-qualified by the ABA; blocking such highly rated nominees is unprecedented
To make Democratic filibusters appear unwarranted, many "nuclear option" supporters have falsely claimed that some -- or all -- of Bush's judicial nominees have received the American Bar Association's (ABA) highest qualification rating. Others have argued that Texas Supreme Court justice Priscilla Owen is the first judicial nominee to be filibustered who received a unanimous well-qualified (WQ) rating from the ABA.
But of the 10 Bush nominees filibustered by Senate Democrats, only three -- Owen, Miguel Estrada, and David McKeague -- received a unanimous "Well Qualified" rating from the ABA. Conservatives have frequently touted Janice Rogers Brown as highly qualified (see Rush Limbaugh and Rev. Jerry Falwell), but she twice received an "Unqualified" rating from the California judicial evaluation committee and currently has the ABA's lowest "passing" rating of Qm/NQmin (meaning a majority consider her "Qualified" and a minority consider her "Not Qualified").
Contrary to some claims, blocking WQ-rated judicial nominees is not a new practice. Republicans blocked 10 of President Clinton's appeals court nominees with unanimous WQs from receiving a Senate Judiciary Committee hearing, and another WQ nominee received a committee hearing but was granted neither a committee vote nor full Senate consideration.
Falsehood #3: Democratic obstructionism has led to far more judicial vacancies during Republican administrations than Democratic administrations
"Nuclear option" proponents have also used the "empty courtroom" argument to advance their agenda, claiming an unusual number of judicial vacancies during Republican administrations as a result of Democratic obstructionism. But what "nuclear option" advocates don't mention is that the discrepancy in judicial vacancies over the last three administrations is primarily due to the recent creation of new judgeships and the president's relatively slow rate of nominating candidates to fill open spots.
One such claim, that more judicial vacancies existed at the end of the George H.W. Bush administration than following the Clinton administration, is largely explained by the 85 new judgeships created by Congress in 1990. And the argument completely collapses when one examines appellate nominees alone: There were more circuit court vacancies when Clinton left office then when President George H.W. Bush did.
Comparisons of the number of current judicial vacancies to the number under Clinton are also misleading, if not outright false. Most of the current vacant federal judgeships are vacant because Bush has nominated candidates to fill only about one-third of the vacancies. There were never fewer district and appellate court vacancies during the Clinton administration than the 45 vacancies that presently exist, according to Congressional Research Service data obtained from the Administrative Office of the U.S. Courts. In other words, there were actually more judicial vacancies when Republicans blocked Clinton's nominees than there are right now.
Falsehood #4: "Nuclear Option" is a Democratic term
Following the Republicans' lead, many major media outlets have attributed the term "nuclear option" as a creation of Senate Democrats. In fact, Sen. Trent Lott (R-MS), one of the proposed measures' leading advocates, actually coined the term.
Falsehood #5: Democrats oppose Bush nominees because of their faith, race, ethnicity, gender, stance on abortion, stance on parental notification ...
Democrats who have filibustered Bush's judicial picks maintain that their opposition stems from the nominees' alleged inability or unwillingness to put aside personal ideological views and follow the law. But that hasn't stopped "nuclear option" proponents from misrepresenting the rationale for Democratic opposition.
One prominent falsehood is that Democrats have opposed the nominees because of their opposition to abortion rights. But opponents of nominees Priscilla Owen, Janice Rogers Brown and William H. Pryor have cited specific actions and statements related to abortion that run counter to precedent and statutory law. Further, the Senate has confirmed 205 of Bush's judicial nominees -- most with substantial Democratic support -- and few, if any, of these confirmed judges have voiced support for abortion rights. Many Bush appointees approved by the full Senate -- such as Michael W. McConnell, John G. Roberts, and James Leon Holmes -- have voiced opposition to abortion rights.
Conservatives have also accused Democrats of opposing Owen because of her support for Texas' parental notification law for minors seeking abortions. In fact, Democrats claim Owen tried to rewrite the law by imposing obstacles to receiving a judicial bypass that the letter of the law did not require, an accusation first made in an opinion written by her then-colleague on the court, Attorney General Alberto R. Gonzales, in which Gonzales accused the dissenters, including Owen, of trying "to create hurdles that simply are not to be found in the words of the statute" and of advocating "an unconscionable act of judicial activism."
The most frequent distortion has been that Democrats have opposed the 10 filibustered judicial nominees because of their "faith" or their "religion." Additionally, "Nuclear option" advocates have baselessly accused Democrats of blocking Bush's nominees because of their ethnicity, race, or gender.
Falsehood #6: Public opinion polling shows clear opposition to judicial filibusters, support for "nuclear option"
Many media reports have aided "nuclear option" advocates by selectively citing or mischaracterizing polling results to claim that the public is strongly opposed to judicial filibusters.
A partisan Republican poll, which proponents claim suggests broad public support for the "nuclear option," has received significant media coverage. The poll asked respondents whether they agreed with the following statement: "If a nominee for any federal judgeship is well-qualified, he or she deserves an up or down vote on the floor of the Senate [underline in original]." But it is misleading because it offers only the option of supporting or opposing "up or down" votes for judicial nominees without any context or accompanying argument offered in opposition. In addition, the poll posits that the judges in question are "well qualified." Some coverage of the poll mischaracterized its results by unquestioningly reporting Republican National Committee chairman Ken Mehlman's false suggestion that the poll showed that the vast majority of Americans believe all judicial nominees should receive an up-or-down vote in the Senate.
In fact, another question from Republican polling more directly addresses the debate over judicial nominees and suggests that the public opposes eliminating senators' ability to block a nomination using the filibuster. Private Republican polling indicated that only 37 percent of respondents supported the GOP plan to prevent Democrats from filibustering judicial nominees, while 51 percent opposed.
"Nuclear option" advocates have also attempted to dismiss an ABC News/Washington Post poll showing even stronger opposition to the rule change by claiming the poll is biased because it didn't specifically mention the terms "filibuster" or "unprecedented." But other polls that specifically mention the filibuster similarly indicate majority opposition to the "nuclear option," and the Democrats' use of the filibuster is not unprecedented, as noted above. The most recent poll to specifically mention the term "filibuster," conducted May 10-12 by Time magazine, found that 59 percent of respondents opposed Republican efforts to "eliminate the filibuster" for judicial nominees, compared to 28 percent in favor.
Falsehood #7: Filibustering judicial nominees is unconstitutional
Another argument made by those supporting the "nuclear option" is that filibustering judicial nominees is unconstitutional. In fact, the Constitution makes no mention of filibusters, but it explicitly empowers the Senate to determine its own rules. Senate rules allow for unlimited debate on any subject, including judicial nominees. Rule XXII of the Standing Rules of the Senate, which governs debate and filibusters, explicitly states that the rules apply to "any measure, motion, [or] other matter pending before the Senate," including judicial nominations. In response to a May 12 question from Sen. Robert Byrd (D-WV) on the Senate floor, Frist acknowledged that the Constitution does not require an up-or-down vote for all judicial nominees: "To the question, does the Constitution say that every nominee of the President deserves an up-or-down vote, the answer is, no, the language is not there."
Falsehood #8: Clinton's appellate confirmation rate was far better than Bush's rate
"Nuclear option" advocates have also claimed that the confirmation rate for Clinton's appellate nominees was much higher than for Bush's nominees. But the confirmation rate in Clinton's second term and Bush's first term are nearly identical -- 35 of Clinton's 51 nominees were confirmed, compared to 35 of Bush's 52 nominees.
Another talking point is that "100 percent" of Clinton's appellate nominees were approved once they reached the Senate floor. But that statistic is highly misleading because the Republican-led Judiciary Committee blocked the 16 second-term Clinton appellate nominees by keeping them off the floor and, in all but one case, denying them even committee hearings.
Falsehood #9: Sen. Byrd's alterations to filibuster rules set precedent for "nuclear option"
Yet another faulty claim put forth by opponents of judicial filibusters is that past actions by Sen. Robert Byrd (D-WV) have constituted a precedent for the so-called "nuclear option."
For example, columnist and CNN host Robert Novak claimed that a 1977 parliamentary maneuver by Byrd to break a post-cloture filibuster set such a precedent. A standard filibuster occurs when senators exercise their full rights under Senate Standing Rule XXII, which requires a three-fifths majority (60 votes) to invoke cloture, or cut off debate, on any matter pending before the Senate. But then-Senate Majority Leader Byrd's action in 1977 was a successful attempt to break a post-cloture filibuster; 60 senators had already voted for cloture, but two senators continued to extend debate by offering a series of amendments meant to manipulate a loophole in then-standing Senate rules. In order to end the post-cloture filibuster, Byrd invoked a provision of Rule XXII forbidding dilatory amendments. The precedent Byrd set was novel only because he interpreted Rule XXII to allow the chair of the Senate to rule the dilatory amendments out of order without first requiring a point of order from a senator on the floor.
By contrast, Republican senators are currently considering the "nuclear option" precisely because they lack the 60 votes to invoke cloture on the initial filibuster of the 10 judicial nominees.
Novak's claim is just one instance of opponents of judicial filibusters claiming that actions by Byrd set a precedent for the "nuclear option." The various claims originated in a fall 2004 article by lawyers Martin B. Gold and Dimple Gupta published in the conservative Harvard Journal of Law and Public Policy. Gold is a former floor adviser to Senate Majority Leader Bill Frist (R-TN), and Gupta is a former employee of the Bush Justice Department. The progressive advocacy group People for the American Way rebutted the other arguments for a "nuclear precedent" put forth in Gold and Gupta's article in a February 22 report.
Falsehood #10: Democrats have opposed "all" or "most" of Bush's judicial nominees
"Nuclear option" proponents have drastically exaggerated Democratic efforts to block Bush's judicial nominees, suggesting that they have opposed all of his nominees or all of his conservative nominees.
In fact, the Senate has to date approved 205 judicial nominees, with Senate Democrats filibustering 10. The vast majority of Bush's nominees have received strong bipartisan support. For example, in April district court nominee Paul Crotty was confirmed by a vote of 95-0. Even among Bush's first-term appellate nominees, the Senate confirmed more than 70 percent.
The Not-So-Secret History of Filibusters
By GEORGE J. MITCHELL
EVERYONE recalls "Mr. Smith Goes to Washington," but too few remember the real-life Mrs. Smith. So, as the Senate nears a vote on a proposal to unilaterally change Senate rules for confirming federal judges, I am reminded of the words spoken 55 years ago by Senator Margaret Chase Smith of Maine in her famous "Declaration of Conscience" against the tactics of Senator Joe McCarthy, a member of her own party.
"I don't believe the American people will uphold any political party that puts political exploitation above national interest," the senator said. "Surely we Republicans aren't that desperate for victory. While it might be a fleeting victory for the Republican Party, it would be a more lasting defeat for the American people. Surely it would ultimately be suicide for the Republican Party and the two-party system that has protected our American liberties from the dictatorship of a one-party system."
The circumstances are obviously different; there is no McCarthyism in the current dispute. But the principles of exercising independent judgment and preserving our system of checks and balances are at the heart of the Senate rules debate.
Senator Smith embodied independence and understood the Senate's singular place in our system of checks and balances. Our founders created that system to prevent abuse of power and to protect our rights and freedoms. The president's veto power is a check on Congress. The Senate's power to confirm or reject judicial nominees balances the president's authority to nominate them. The proposal by some Republican senators to change rules that have governed the Senate for two centuries now puts that system in danger.
Since 1789, the Senate has rejected nearly 20 percent of all nominees to the Supreme Court, many without an up-or-down vote.
In 1968 Republican senators used a filibuster to block voting on President Lyndon B. Johnson's nominee for chief justice of the Supreme Court. During the debate, a Republican senator, Robert Griffin, said: "It is important to realize that it has not been unusual for the Senate to indicate its lack of approval for a nomination by just making sure that it never came to a vote on the merits. As I said, 21 nominations to the court have failed to win Senate approval. But only nine of that number were rejected on a direct, up-and-down vote."
Between 1968 and 2001, both parties used filibusters to oppose judicial nominees. In 2000, the last year of Bill Clinton's presidency, Republican senators filibustered two of his nominees to be circuit judges. They also prevented Senate votes on more than 60 of Mr. Clinton's judicial nominees by other means.
So much for the assertion that filibustering to prevent votes on judicial nominees is a new tactic invented by Senate Democrats.
Senate rules can be changed, and they often have been. But Senate Republicans don't have the votes for a change within the rules. So they propose to go around them, to act unilaterally to get their way. It's what they call the "nuclear option."
They claim that their actions are justified because the filibuster is being used unfairly to stop the confirmation of President Bush's nominees. But 208 of the president's 218 judicial nominees have been approved. That's right: the Senate has confirmed 95 percent of Mr. Bush's judicial nominees. That's a higher percentage of approval than any of his three predecessors achieved.
During my six years as majority leader of the Senate, Republicans, then in the minority, often used filibusters to achieve their goals. I didn't like the results, but I accepted them because Republicans were acting within the rules; and we were able to work together on many other issues. There were 55 Democratic senators then. We had the power to take the drastic action now being proposed, but we refrained from exercising that power because it was as wrong then as it is now.
Most Americans may not be aware of the complexities of the Senate's rules, but they do know and understand two fundamental principles: playing by the rules and dealing fairly with others.
The nuclear option violates both. If it's exercised, I hope that enough modern-day Senator Smiths, guided by what is best for the nation and the Senate, will vote to stop it.
George J. Mitchell is a former majority leader of the Senate.
Hatch to hold hearings for Michigan judges
By Dee-Ann Durbin / Associated Press
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WASHINGTON -- Sen. Orrin Hatch says he will schedule hearings for six Michigan judges despite the protests of Michigan's Democratic senators.
Hatch, a Utah Republican and chairman of the Senate Judiciary Committee, sent a letter Friday to Sens. Carl Levin and Debbie Stabenow saying he will schedule hearings for four nominees to the U.S. 6th Circuit Court of Appeals and two nominees for the U.S. District Court for the Eastern District of Michigan. All of the judges were nominated by President Bush.
Levin and Stabenow had no immediate comment Monday. They have been blocking the hearings using a measure known as the "blue slip," referring to the blue sheet of paper senators use to tell the Judiciary Committee whether they approve of a nominee.
Levin and Stabenow were blocking the hearings because former Sen. Spencer Abraham, R-Mich., blue-slipped two of President Clinton's nominees, including one who waited four years without a hearing. Levin and Stabenow want the White House to establish a bipartisan committee to nominate judges.
Hatch said Levin and Stabenow are misusing their authority and that the White House has made numerous attempts to consult with them on the nominees.
"To my knowledge, at no time during these extensive consultations have you articulated any specific objections to any of the nominees for the Michigan vacancies," Hatch wrote.
He also said the White House interviewed Clinton's nominees and offered to consider them both for federal district judgeships in Michigan, but he said Levin and Stabenow refused that offer.
A spokeswoman for Hatch said Monday that hearings for the Michigan judges had not yet been scheduled.
The 6th U.S. Circuit Court of Appeals hears cases from Michigan, Ohio, Kentucky and Tennessee. Traditionally, the court has included four judges from each of those states. The U.S. District Court for Eastern Michigan hears federal cases from the eastern part of the state.
Bush's nominees for the appeals court are federal court Judge David McKeague, Wayne County Court Judge Susan Neilson and state appeals court judges Richard Griffin and Henry Saad. His nominations for the district court are Midland County Judge Thomas Ludington and Wayne County Judge Daniel Ryan.
Senate Majority Leader Bill Frist, R-Tenn., and Republican members of Michigan's House delegation sent letters to Hatch last week asking him to override Levin and Stabenow. Michigan's representatives were concerned Bush would nominate judges from other states if hearings weren't held.
Hatch has ignored a home state senator's blue slip before. In May, he overrode the objections of Sen. Barbara Boxer, D-Calif., and allowed the Judiciary Committee to vote on the nomination of Los Angeles Judge Carolyn Kuhl to the 9th U.S. Circuit Court of Appeals. The full Senate has not yet voted on Kuhl.
On the Net: Senate Judiciary Committee, http://judiciary.senate.gov Sen. Carl Levin, http://www.levin.senate.gov Sen. Debbie Stabenow, http://stabenow.senate.gov
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