Avoiding False Equivalence: The NYT Shows Us How

See, it's not that hard just to say "filibuster"!


Credit where it's due: one day after a NYT headline that used "Gridlock" to describe what was actually a deliberate obstructionist strategy, a front-page NYT story shows how to describe plainly what is going on, while observing the conventions of mainstream journalism.

As reminder/background for appreciating this story:
  • The Court of Appeals for the D.C. Circuit is generally referred to as the second-most powerful court in the land, and is a standard training/recruiting ground for future Supreme Court nominees (including Roberts, Thomas, Scalia, and Ginsburg on the current Supreme Court).
  • The D.C. Circuit court has 11 seats, but until last week four of the seats were vacant. The remaining judges had a 4-3 Republican-Democratic tilt in terms of the presidents who chose them (one from the first George Bush, three from the second, three from Bill Clinton).
  • Until last week, Barack Obama had not placed anyone on the D.C. Circuit, despite those four empty seats. For a long time he didn't nominate anyone (!); then this year a nominee withdrew after Republicans filibustered her; and last week Sri Srinavasan was approved 97-0. Full background from Jeffrey Toobin.
  • Mitch McConnell's Republicans are now proposing, boldly, to keep Obama from having any further influence on the D.C. Circuit by removing the three now-empty seats and transferring them to some other less-influential circuit.
That's the background from which the NYT story works. And it lays it all out in language of exemplary clarity and directness:
If that strategy [abolishing the three vacant seats], which Democrats have compared to President Franklin D. Roosevelt's failed attempt to change the size of the Supreme Court, does not work, Republicans could filibuster Mr. Obama's nominees to prevent them from joining the court. Republicans currently hold 45 of the Senate's 100 seats, and 41 are needed for a filibuster.
See, that's not so hard! And it wouldn't seem so remarkable, except for the flood of other stories saying that it takes 60 votes to "pass" a bill or "approve" a nominee, rather than to break a filibuster on those matters -- which require only a majority vote for approval. Well done, Michael Shear and NYT.

That leaves us with the deeper problem, which a new post by Andrew Cohen describes with similar but more depressing clarity: the ability of a disciplined minority in the Senate to impede and eventually destroy the normal workings of governance, including staffing the judiciary. As Gov. Jerry Brown of California put it, in an interview I quoted recently: "We can't have a country based on the 60-vote standard ... I think 60 votes could end America's ability to govern itself."  Update: Also see this column by Jonathan Chait.