T Nation

Liberal Media Bias and Judicial Filibusters

This is just too much – I had to start a new thread just to highlight this latest NYT offering, mostly because the old media bias threads are dated and full of campaign stuff – at least this is in the editorial page, but cutting and pasting from a DNC talking points memo really is too much… The idea that the NYT is without bias is laughable. It should just come out and admit that its coverage is reflexively from the liberal perspective and be done with it.

Also, this is a good way to segue into the topic of filibusters. How many people know filibusters aren’t a matter of Constitutional privilege, but merely the interpretation of internal Senate rules? What do people think about the “nuclear option” (nu-cu-lur option in Texas vernacular) that Republicans have discussed to change the Senate rules to effectively disallow filibusters on judicial nominations?

Maybe even a third topic: How these nominations are only so important and hotly contested because people have come to expect activist courts to legislate from the bench.

Anyway, here’s the dissection of the offending (and offensive, from a factual standpoint) editorial:

http://patterico.com/archives/003107.php

New York Times Editors Regurgitate Democrat Talking Points – Without Even Checking Them Out First

Not only are New York Times editors regurgitating Democratic talking points in their editorials, they aren’t even bothering to check them out first. The proof appears in this morning’s editorial on judicial filibusters, titled Mr. Smith Goes Under the Gavel:

[Begin NYT excerpt] Judicial nominees have never been immune from filibusters. When Republicans opposed President Lyndon Johnson's choice for chief justice, Abe Fortas, they led a successful filibuster to stop him from getting the job. More recently, in the Clinton era, Republicans spoke out loudly in defense of their right to filibuster against the confirmation of cabinet members and judicial nominees. Republican senators, including Rick Santorum of Pennsylvania and Mike DeWine of Ohio, used a filibuster in 1995 to block President Bill Clinton's nominee for surgeon general. Bill Frist, now the Senate majority leader, supported a filibuster of a Clinton appeals court nomination. Senator Christopher Bond, a Missouri Republican, was quoted in The St. Louis Post-Dispatch in 1993 saying, "On important issues, I will not hesitate to join a filibuster." [End NYT excerpt]

I looked up this last quote. Contrary to the clear implication of the editors, the quote from Senator Bond has nothing to do with judicial filibusters. It related to his participation in a filibuster to block President Clinton’s economic stimulus package. Here is the full context for the quote:

[Begin quote] This month, the Republican minority used their unity and Senate rules to block Clinton's $16.3 billion economic stimulus package. "On important issues, I will not hesitate to join a filibuster," declares Sen. Christopher S. Bond, R-Mo., who offered four amendments and orated as part of the Republican campaign. [End Quote]

You might well wonder: where did New York Times editors get the idea to include this irrelevant quote from a 1993 article in a St. Louis paper? A quote that has nothing whatsoever to do with filibusters of judicial (or even cabinet) nominees?

Wonder no longer. A Google search of that quote yields two results: today’s NYT editorial, and a Democratic Policy Committee page of talking points about judicial filibusters, titled “The Republican Flip-Flop on Filibusters.”
http://democrats.senate.gov/~dpc/pubs/108-1-199.html

Ouch. The New York Times editors simply swallowed the Democrat talking points whole, rather than checking out this material for themselves.

I have further criticism of the editorial in the extended entry.

The editorial is tripe, start to finish. It opens with this amusing line:

[NYT excerpt] Republicans control the White House, both houses of Congress and the Supreme Court. [End NYT excerpt]

I’m not sure exactly what the editors mean when they say “Republicans . . . control the Supreme Court.” Do they mean that most of the Justices were appointed by Republicans? That’s true, as far as it goes – but I think John Paul Stevens, arguably the Court’s most liberal Justice, would laugh long and hard if you told him Republicans “control” him, just because he was appointed by a Republican. By that logic, Republicans “controlled” Eisenhower appointees William Brennan and Earl Warren, two of the most liberal Justices in history.

The fact is that nobody “controls” the Justices. Even Justice Scalia routinely votes in ways that dismay Republicans, including his votes against the view that the Constitution places an upper cap on punitive damages, against unilateral executive authority to imprison citizens considered “enemy combatants,” in favor of the right to burn the flag, and countless others.

The editorial then launches into a defense of the filibuster as a time-honored tradition, alleging that Republicans

[Begin NYT excerpt]are so concerned that Democrats will use the filibuster to block a few far-right judicial nominees that they are talking about ending one of the best-known checks and balances in government. [End NYT excerpt]

And, of course, we get the inevitable allusion to “Mr. Smith Goes to Washington.”

The problem is that the subject matter of the editorial is not just any filibuster – it’s judicial filibusters. And the ugly truth, which the editorial does its best to disguise, is that it is unprecedented to filibuster judicial nominees who have majority support on the Senate floor.

The editorial cites the case of Abe Fortas (another Democrat talking point), but Fortas would have lost a floor vote, 46-49 ( http://www.nationalreview.com/comment/cornyn200311131044.asp ). Moreover, Fortas’s opponents debated his nomination only four days, and repeatedly insisted that they were not engaging in a filibuster ( http://www.cornyn.senate.gov/record_jc.cfm?id=225340 ).

Until the filibuster of Miguel Estrada and numerous subsequent Bush nominees, Fortas was the only nominee who ever faced a partisan filibuster who was not subsequently confirmed. The editorial claims that Bill Frist “supported a filibuster of a Clinton appeals court nomination.” This is another point taken from the Democratic Policy Committee page of talking points, and apparently refers to the nomination of Richard Paez ( http://democrats.senate.gov/~dpc/pubs/108-1-199.html ). But Paez was actually confirmed, precisely because Senate Republicans didn’t filibuster him ( http://www.worldnetdaily.com/news/printer-friendly.asp?ARTICLE_ID=31525 ) – even though he was supported (and eventually confirmed) by fewer than 60 Senators ( http://www.cbsnews.com/stories/2000/03/09/national/main170072.shtml ).

Of course, the editors are trying to point out alleged Republican hypocrisy – but naturally fail to observe the numerous examples of Democrat hypocrisy on the same issue. To take one infamous example:

[Begin quote]I have stated over and over again on this floor that I would refuse to put an anonymous hold on any judge; that I would object and fight against any filibuster on a judge, whether it is somebody I opposed or supported; that I felt the Senate should do its duty.[End quote]

That’s Pat Leahy, folks ( http://www.nationalreview.com/york/york022503.asp ).

But the most boneheaded comment in the editorial comes here:

[Begin NYT excerpt] According to Senate rules, changing the filibuster rule should require a two-thirds vote. But in the "nuclear option," Vice President Dick Cheney, as Senate president, would rule that filibusters of judicial nominees could be ended by a simple majority.

That would no doubt put the whole matter in the courts, an odd place for the Republicans - who are fighting this battle in the name of ending activist courts - to want it resolved. [End NYT excerpt]

This comment earns the offending editor the dunce cap and a trip to the corner. Once he returns, ask him this question: Just how you do think this issue would get to the courts in the first place? You think the Republicans would invoke the nuclear option and then sue themselves? No! (Here’s where a crisp slap across the face would help drive the point home.) DEMOCRATS will be the ones suing. Republicans will be the DEFENDANTS – you know, the people who generally don’t want something resolved in court, because they think they shouldn’t be there to begin with.

And contrary to the editors’ assertion that “Republicans would have a weak case,” Democrats would be the ones with a crappy case. Any such lawsuit would get tossed out of court as a political question in no time flat ( http://beldar.blogs.com/beldarblog/2004/11/going_nuclear_t.html ) – in less time, actually, than it takes for a New York Times editor to cut-and-paste a Democratic talking point into an editorial without checking it first.

Hehehe… the NYT editors got owned. Some more.

As if we needed more proof.