CFJ: Reid and PFAW Caught Misrepresenting CRS Report on Past Judicial Filibusters
The Committee for Justice

May 02, 2005


WASHINGTON, DC - the Committee for Justice (CFJ), which defends and promotes constitutionalist judicial nominees, today caught Sen. Harry Reid and People for the American Way (PFAW) distorting a Congressional Research Service report on past judicial filibusters.

Last week, Sen. Reid attempted to rebut Sen. Orrin Hatch's claim that Senate tradition had not included judicial filibusters. According to Reid, "A Congressional Research Service (CRS) reports indicates that between 1949 and 2002 there were thirty-five presidential nominations that were filibustered, including seventeen nominations to Article III courts."

A week earlier, PFAW issued a chart titled "Filibusters of Nominations" that listed 30 times it claimed nominations were filibustered, including 13 judicial nominations. It identified as its source CRS Report RS20801, "Cloture Attempts on Nominations" (12/11/02).

By definition, a filibuster occurs when a vote of cloture fails, not when it succeeds and a nomination proceeds to up or down vote. In all but one case, Abe Fortas who lacked majority support and was debated for four days, every judicial nomination subjected to cloture has gone on to confirmation.

Reid and PFAW's claim, that filibusters include achieving cloture and proceeding to confirmation, is Orwellian. They are saying that invoking cloture is precedent for not invoking cloture, that confirming nominees is precedent for not confirming nominees.

Unfortunately, members of the media are falling for it. This weekend a New York Times analysis said, "From 1968 to 2002, Senate leaders tried cloture 17 times for judicial nominees. So the Democrats can plausibly claim 17 filibusters."

Again, "trying" cloture is not a filibuster; defeating cloture is.

But PFAW and Reid's true deceit is citing the non-partisan CRS in support of this view. In fact, the very CRS report that PFAW and Reid cite SPECIFICALLY DENIES THEIR CONCLUSION. The report, on pages one and two, says it would be "incorrect," "erroneous," and a "misuse" of CRS data to equate cloture attempts with actual filibusters:

Page 1: "it is erroneous to assume that cases in which cloture is sought are always the same as those in which a filibuster occurs."

Page 2: "it would be a misuse of the following data, identifying nominations on which cloture was sought, to treat them as identifying nominations subjected to filibuster."

Page 2: "This report provides data only on nominations on which cloture motions were offered. It is not to be taken as providing systematic data on nominations that were or were not filibustered."

It is bad enough that PFAW and Sen. Reid have chosen to claim successful cloture votes as filibusters. Now, they are misrepresenting the nonpartisan CRS's specific, repeated admonition. Without this historical leg to stand on, the Democratic claim, that judicial filibusters are vital to checks and balances, cannot stand.

When will the media set the record straight, that permanent judicial filibusters of majority-supported nominees are a radical break with Senate history? When will it report that liberal leaders are selling snake oil in the judicial debate?



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