The NYT‘s Selective History on Judicial Filibusters

Over the weekend, the NYT published a highly misleading story about Republican filibusters of President Obama’s judicial nominees. Consider the very first sentence of the article: “A fresh feud over federal judgeships has again begun to agitate the Senate, with Republicans so far blocking President Obama from filling any of the four vacancies on the nation’s most prestigious and important appeals court.” Republicans have stopped the President from “filling any of the four vacancies”? That would be quite a trick, given that President Obama has only made two nominations for that court — Caitlin Halligan and Sri Srinivasan [– and only one of them, Halligan, has even come up for a vote]. These nominations were first made in 2010 and 2012. [Had the President made more nominations — and the Republicans had blocked them all (something that could still happen) — it would be fair to say Republicans were “blocking President Obama from filling any of the four vacancies.”]

Halligan, the story notes, was “nominated to fill the vacancy left by Judge John G. Roberts Jr. when he left to join the Supreme Court in September 2005.” But wait. President Obama nominated Halligan in September 2010 — five years after Roberts was confirmed. What happened in the interim? Well in 2006 then-President Bush nominated Peter Keisler to replace Roberts. Keisler was eminently qualified and endorsed by the Washington Post, but he never got a vote. Like some of Bush’s other nominees to the D.C. Circuit — most notably Miguel Estrada, whose nomination was repeatedly filibustered until he eventually withdrew — Keisler was blocked.

There’s still more misleading material in the story, as Ed Whelan documents here. Among other things, the story claims that the “Gang of 14″ deal to allow some of President Bush’s blocked nominees to receive confirmation votes became “informal Senate policy,” but fails to note that Senate Democratic leaders (and one Illinois Senator who would go on to bigger and better things) continued to vote against cloture on Bush nominees despite the deal. Further, by the deal’s own terms, it only applied to the Congress in which it was signed.

The filibuster of judicial nominations is regrettable, and it’s something I’ve consistently opposed. While I don’t expect a fair recounting of the history from the NYT editorial page, I do expect better from the news pages.

[Note: I edited the first paragraph because some objected to my omission of the word “any” from the NYT story quote, even though I reproduced the entire quote in the preceding sentence. My point still stands.]