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Falsely Asserting a False Assertion

The MRC piles on qualifications to try to turn a truth into a lie. Plus: Is sister site resorting to Republican talking points on judicial nominations? And CNS won't point out judicial activism when a conservative does it.

By Terry Krepel
Posted 5/27/2005
Updated 5/29/2005

The Media Research Center's claim that NBC's Brian Williams "falsely asserted" something about judicial filibusters is itself a false assertion.

In a May 20 CyberAlert, Brent Baker writes that Williams "falsely asserted that the 'nuclear' option in the Senate would end 'the use of the filibuster to block votes on judges used by both sides for years.'" That is actually true; Abe Fortas, candidate for Supreme Court justice, was filibustered in 1968, and Republicans made a serious enough effort to filibuster Clinton judicial nominees Richard Paez and Marsha Berzon that a cloture vote (normally used to end a filibuster) was needed to stop the effort; Senate majority leader Bill Frist voted against cloture.

In the face of that, Baker goes the conservative route of trying to turn the truth into a lie by adding a pile of caveats and qualifications that Williams didn't mention to insinuate that what he said was false. "In fact, Democratic use of the filibuster on multiple judicial nominees is unprecedented and Republicans have never employed it in a partisan effort to block a nominee who had majority support," Baker writes; he dismisses the Fortas example by claiming that the fight over his nomination "lasted a matter of weeks, was bi-partisan and he didn't have majority support. In the current situation, Bush's nominees would earn majority support if they could get a vote and some have been blocked for going on four years."

The truth: Filibusters against judicial nominees have been used by both sides. All of Baker's qualified assertions don't make that any less of a fact.

* * *

MRC employees have that problem of putting conservative spin before facts. Sister site made the same false claim as the MRC in two May 13 stories by Susan Jones. One story claims that "filibusters have never been applied to judicial nominations until President Bush took office," and the other claims that "[t]his is the first time in history that judicial nominees have been filibustered."

Jones took a different approach in a May 23 CNS story, "balancing" a story about "liberal advocacy group"'s efforts to "preserve our independent courts" with what reads an awful lot like Republican talking points:

Republicans say it is the Democrats who are breaking Senate tradition: never before in the nation's history has the filibuster been applied to judicial nominees.

Republicans say they want to end the filibuster of judicial nominees only -- the minority party would still be able to filibuster legislation.

Republicans say Democrats are circumventing the Constitution by creating a situation where 60 votes (the number required to end a filibuster) are required before a judicial nominee may be approved by a simple majority of the full Senate.

Republicans say all they want is an up-or-down vote on those nominations that make it out of committee to the full Senate.

Which brings up the question of why former executive editor Scott Hogenson left CNS to take a job with the Republican National Committee. Whatever the reason, it certainly wasn't for any CNS prohibition on injecting Republican talking points into "news" articles.

(Update: That first point, by the way, is factually incorrect; filibusters have been applied in the past to judicial nominees.)

* * *

For, sometimes getting the conservative slant across is so important that don't even bother with any pretense of balance or meshing with previously stated views, as illustrated by a May 25 story on the lone Senate Republican who didn't vote for the nomination of Priscilla Owen as an appeals judge, Lincoln Chafee.

The story, by Jered Ede, takes a strange approach to discounting Chafee's criticism of Owen, which involves a Texas Supreme Court case in which she wrote a minority opinion that objected to granting a minor seeking an abortion a judicial bypass to the state's parental notification law. As Ede described it:

The minority opinion is one of a series of opinions Owen took part in during the 2000 session of the Texas Supreme Court. The cases focused on parental notification as a requirement for a minor to receive an abortion. Owen consistently voted in support of notification, which conflicted with a Texas law.

Stating the opinion was merely "one of a series of opinions" states the obvious; judges issue many opinions. But Ede's statement that "Owen consistently voted in support of notification, which conflicted with a Texas law" not only misstates the nature of the issue -- the Texas parental-notification permits a judicial bypass, which Owen consistently voted against granting -- it misses the obvious: Owen's actions are the conservatives' textbook definition of judicial activism.

Indeed, a May 13 CNS story begins: "A federal court ruling striking down Nebraska's Defense of Marriage Amendment has renewed conservative outrage over 'activist' judges who ignore the will of the people." Also, current attorney general Alberto Gonzales, who formerly served on the Texas Supreme Court with Owen, wrote a concurring opinion on that particular case that called Owen's actions "an unconscionable act of judicial activism."

In other words, Owen ignored the will of the people, as expressed by their elected representatives in the Texas legislature; she used an activist approach to the parental notification law by not following it as enacted by the legislature and applying new restrictions that the law does not require.

Why won't CNS call judicial activism by that term when a conservative engages in it?

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