How to Lie with Statistics, Filibuster Edition

by Carrie Severino | December 7th, 2013

The rhetoric surrounding the Senate rule change that eliminated the filibuster for judicial and executive nominees has provided numerous textbook examples of how to lie with statistics.

The Atlantic’s Andrew Cohen takes this disregard for truth to a new level. Responding to Judge Wilkinson’s op-ed lamenting the use of the nuclear option, Cohen claims that “hundreds of judges around the nation” have “crushing workloads” because of a “logjam of appointments” blocking the judiciary from operating “at or near capacity.” Parroting Democratic talking points, Cohen blames Senate Republicans’ use of the filibuster for “help[ing] create or continue” the 38 current judicial emergencies, along with the 94 current judicial vacancies.

While there are real judicial emergencies, Cohen’s description and diagnosis of the problem are simply factually untrue.

For starters, the filibuster is a red herring. Cohen claims “dozens” of Obama nominees have been stopped by the filibuster; in fact, there have been only eight successful filibusters during all of Obama’s tenure in the White House, for six different nominees. One of those was later confirmed. That’s a total of five nominees blocked by the filibuster. Meanwhile, 209 Obama nominees have been confirmed.

What’s more, the instances when the filibuster was used it had nothing to do with perpetuating judicial emergencies. One nominee – later confirmed – was blocked only because of a longstanding Senate policy of not confirming nominees late in an election year. The others were all nominees to the D.C. Circuit and were blocked because of concerns that the court had too low a workload. Far from being somewhere litigants are forced into long delays, the D.C. Circuit actually cancels sittings because they don’t have enough cases.

To hear Cohen tell it, there are “hundreds of judges” being “​literally”​ crushed by their workload, while worthy nominees are caught in a “logjam of appointments.” Unfortunately, the truth is that the logjam is being held up by Democrats, not Republicans.

For example, Cohen complains of a judicial emergency in North Carolina that has been unfilled since 2005, but neglects to tell the rest of the story: Democrats blocked President Bush’s nominee for years, not even affording him a hearing despite his having received the highest ratings from the ABA. President Obama withdrew that nomination, but didn’t get around making a pick of his own for the spot until June of 2013, five and a half years after he took office. And we are supposed to blame the prolonged vacancy on the Republicans?

That case is not unique. The Obama Administration has largely neglected judicial nominations, spending the vast majority of his first term with nominees for fewer than 50 percent of the available vacancies. After being criticized by his own base for letting the courts slide, he managed to pick up the pace, but still can’t seem to come up with nominees for more than 55 percent of the available slots. Even five years into the Obama Administration, 42 out of 94 vacancies have no nominee, including 17 of the 38 “judicial emergency” seats.

I agree with Cohen on one thing: The rule change is a good thing for the Senate. Before, Senator Reid was able to strongarm Senate Republicans into not using the filibuster by simply threatening to change the rules. That allowed him to have his cake and eat it too by leaving the filibuster in place for when Democrats are in the minority again. The rules change was a scorched-earth move that in the long term will decrease minority power for both parties, but at least will do so on even terms. And I trust Senate Republicans will remember and won’t pull any punches when they are once again in the majority.