CNN Buys Into Right-Wing Myths About D.C. Circuit And Filibuster Reform

CNN congressional correspondent Dana Bash repeated the right-wing myth that the U.S. Court of Appeals for the D.C. Circuit, arguably the second most important court in the country, is currently “evenly split” and inaccurately reported that the blanket filibusters preventing up-or-down votes on President Barack Obama's judicial nominees are “sacrosanct.”

In the wake of a flurry of filibusters of the president's highly-qualified nominees to the D.C. Circuit, Democrats appear to have finally convinced holdouts in their caucus that Senate Republicans' unprecedented obstructionism of judicial and executive nominees is unacceptable. Unfortunately, in reporting on this development that a change to the Senate rules may finally have enough votes to pass, CNN's Bash uncritically repeated right-wing media's dissembling justifications for the GOP blockade. From the November 19 edition of the Situation Room:

BASH: As you well know, Senate filibusters require 60 votes to overcome and it's a pretty high hurdle in a politically divided Senate but the ability to filibuster has been sacrosanct, neither party has dared take that power away from the minority. But Democrats are so frustrated right now that they can't get the president's nominees confirmed, they are once again threatening to do just that, the nuclear option.


BASH: But unlike other partisan brawls over the course, this is not about qualifications or ideology of the nominees. It's about the makeup of the court itself.  The D.C. Circuit, the powerful federal appeals court that hears most challenges to laws passed by Congress, now evenly split, four judges appointed by Democrats and four by Republicans. And the GOP wants to keep it that way.


BASH: Republicans argue the D.C. Circuit workload isn't heavy enough to need three more judges. They say Democrats are the ones playing politics.

To her credit, Bash does correctly note that Republicans cannot muster legitimate criticisms of the actual nominees. But by failing to recognize the inaccuracy of their alternate reasons for filibustering these highly-qualified nominees anyway, she inadvertently gives legitimacy to bogus right-wing media rationales and minimizes the historic nature of this rampant obstructionism.

First, the D.C. Circuit Court of Appeals is not “evenly split,” as right-wing media frequently allege. This false claim of “balance” that a Democratic president will somehow put at risk by exercising his constitutional responsibility to fill existing vacancies fails to note that in addition to the eight “active” judges described by Bash, the D.C. Circuit carries six “senior” judges who also frequently hear and decide cases. Of these senior judges, five are Republican nominees, which results in the actual D.C. Circuit balance being heavily tilted away from Democratic nominees, nine judges to five.

Second, although Bash properly noted that the claim that the circuit caseload “isn't heavy enough” to justify any more Democratic nominees is a Republican one, Bash does not question this partisan and faulty argument. Leaving aside the fact that the comparison of raw caseload numbers between circuits does not properly reflect the unique complex nature of the D.C. Circuit's cases, the Judicial Conference's Standing Committee on Judicial Resources has reported that the workload “has remained steady over the past decade.” From People for the American Way, which has frequently debunked this self-serving claim that the exact same seats filled under former President George W. Bush are suddenly not needed:

The nonpartisan experts within the federal judiciary who track and analyze federal court caseloads report that the D.C. Circuit's workload has remained steady over the past decade.

Judge Timothy Tymkovich of the Tenth Circuit Court of Appeals, a George W. Bush nominee who heads the Judicial Conference's Standing Committee on Judicial Resources, which tracks the workload and personnel needs of federal courts, confirmed to a Senate subcommittee in September that the D.C. Circuit's caseload “has been relatively steady the past ten years or so.”

As a result, Tymkovich added, his committee hasn't seen “any reason to reevaluate” the number of designated judgeships on the court.

The Administrative Office of the U.S. Courts' records underscore this observation.

Finally, it is peculiar that Bash states that neither party “has dared” reform the “sacrosanct” filibuster. In fact, Republicans readily proposed the so-called “nuclear option” in 2005 when Democrats selectively filibustered extreme nominees, a far cry from the mass filibustering of mainstream nominees that is occurring now. 

It is precisely Republicans' betrayal of the “extraordinary circumstances” agreement, which defused the previous Republican-led attempt at filibuster reform, which has led even reluctant Democratic Senators to realize that this minority veto over up-or-down votes has become unacceptably abused. Indeed, clear-eyed observers of the Senate realize filibuster abuse long ago wiped away any “sacrosanct” nature this procedural tactic once held. As nonpartisan congressional expert Norm Ornstein of the American Enterprise Institute observed, the right-wing claim that filibuster reform is somehow shockingly unprecedented does not acknowledge that “Republicans will do the same thing when they take the White House and Senate[.] Can anyone doubt that McConnell would blow up the filibuster rule in a nanosecond if he had the ability to fill all courts with radical conservatives...for decades to come?”