Something unprecedented is happening in the United States Senate. In a perversion of the constitutional principle of advice and consent, a minority of senators is exploiting the filibuster rule to prevent a bipartisan majority from voting on a series of the President’s nominees to the federal judiciary. The filibuster, designed to ensure ample debate, has previously been used to stall legislation, but the way it is now being applied to judicial nominations is without precedent, and threatens to permanently raise from fifty to sixty the number of votes required for confirmation.
Believing that the minority should not be allowed to obstruct the majority indefinitely, last week Senate Republicans held a special session on judicial nominations to plead their case. Although this nearly forty-hour “Justice for Judges” marathon did attract attention to the filibusters, much of the message was lost through the filter of the media.
One would think that an issue as important as the future of the federal judiciary would attract copious media attention. After all, many of the most fundamental issues facing our nation – from abortion to race relations to religious freedom – are now being decided by judges rather than elected legislators. With so much at stake, the composition of the federal judiciary ought to be a matter of great interest to all Americans.
Yet media coverage of this issue has been remarkably deficient. Many newspapers have given the filibusters so little attention that readers could be excused for not even knowing that they are occurring. The day after the Senate marathon had begun, USA Today gave the historic session four short paragraphs on page 8A, while the New York Post buried the story on page 16, far behind such critical news as the Rosie O’Donnell magazine trial and a survey of Girl Scouts on “teasing, gossip and name-calling.”
Even though many of the judges under consideration were first nominated more than two years ago, their names have barely appeared in the mass media. Search CNN.com for the phrase “Carolyn Kuhl” (a filibustered nominee to the powerful Ninth Circuit Court of Appeals) and six results will appear. In contrast, a search for “Nicole Kidman” at that same site will yield over 200 hits. When the media do cover the filibusters, moreover, they often do so in a manner unfavorable to the nominees.
Journalists frequently report liberal senators’ claims that President Bush’s nominees are “outside the mainstream,” but they usually fail to include simple responses to this charge: If the filibustered nominees are so extreme, then why do they have the support of a bipartisan majority of senators? And why have those who have stood for election received overwhelming voter support?
Janice Rogers Brown, one nominee who has repeatedly been called “outside the mainstream” by liberal Democrats, was last elected to the California Supreme Court with 76% of the vote. Are 76% of California voters right-wing extremists?
Especially ironic is the fact that Senators Barbara Boxer and Diane Feinstein, both of whom refuse to allow a vote on Brown, were last elected with 53 and 56 percent of the vote, respectively, in the same state that endorsed Justice Brown by a margin of more than a 3-to-1. Yet journalists leave their audience with the impression that it is Brown who carries the taint of extremism.
Furthermore, although the filibusters are being conducted by Democrats, many articles make the Republicans appear to be the unreasonable ones. “Republicans are angered that although they have 51 votes, a slim majority, they have not been able to get all of President Bush’s judicial nominees confirmed,” says the New York Times.
But the Times and many other news outlets are obscuring a crucial point about the filibusters: The Democratic minority is not voting to reject these nominees; it is preventing a vote from even taking place. The Republicans’ frustration seems justified when one learns that the filibustered nominees, if given an up-or-down vote, would very likely be confirmed by a bipartisan majority.
Often what the media do not report is just as telling as what they do report. In this case, little coverage has been given to the passionate speeches of Sen. Zell Miller of Georgia, a lifelong Democrat who has condemned his colleagues’ filibusters of judicial nominees.
Also missing from the large majority of articles is the fact that most Senate Democrats took a completely different position on judicial confirmations when Bill Clinton was president. Sen. Ted Kennedy (D-Mass.), for example, now one of the leaders of the filibusters, said in 1999: “It is true that some Senators have voiced concerns about these nominations. But that should not prevent a roll call vote which gives every Senator the opportunity to vote ‘yes’ or ‘no.'”
Instead of explaining the background and importance of the debate over the judiciary, however, some reporters have scolded Senate Republicans for wasting time discussing judges. Here is how USA Today began one article: “Medicare prescription drug legislation is in dire straits, annual spending bills are five weeks late, and a host of other measures are stacking up. So what is the Senate going to do this week? Talk.”
USA Today is not the only newspaper to take a dismissive tone regarding the Senate session. One article in the Washington Post goes so far as to call the debate a “publicity stunt.” Titled “The Big Filibluster,” the piece mocks the session on judicial nominations as “silly,” “bizarre,” and a “long, weird show.” One bystander is quoted as saying, “I could see if it was something important like the budget or Iraq, but who cares about judicial appointments?” The tone of the article suggests that the reporter agrees – the future of the federal courts is no big deal. (U.S. News takes a similar view.)
In another Post article, two political science professors tell us that Americans don’t care about the issue of judicial nominations: “You just don’t hear ordinary people talking about it,” says one.
He may be right. But perhaps ordinary people would talk about it if the media gave it as much attention as the latest celebrity marriage.