In an April 27 article about the Senate's “stalemate over judicial confirmations,” The New York Times misrepresented public opinion by reporting the findings of a partisan Republican poll, which proponents claim suggests broad public support for the “nuclear option,” while failing to report other Republican polling data that indicate otherwise. Moreover, in conveying Republican National Committee chairman Ken Mehlman's description of the poll's findings, the Times misreported its results, falsely suggesting that the poll showed that the vast majority of Americans believe all judicial nominees should receive an up-or-down vote in the Senate, when the question actually addressed only nominees assumed to be “well qualified.”

After presenting Republicans' assertions that the questions in a poll conducted by ABC News and The Washington Post “were biased,” the Times reported: “At a lunch meeting with Republican senators attended by Vice President Dick Cheney, Ken Mehlman, chairman of the Republican Party, presented the party's own poll results showing that 81 percent of respondents believed that even if Democrats disagreed with a judge they should allow an up-or-down vote on confirmation.” In fact, the poll the Times apparently referenced, conducted by Republican polling firm Ayres, McHenry & Associates, did not address how Democrats should act if they disagreed with a judge's qualifications. Rather, it addressed how the Senate should handle a judicial nominee assuming he or she is “well qualified.” The poll found that 81 percent of Democrats believe that “If a nominee for any federal judgeship is well qualified, he or she deserves an up or down vote on the floor of the Senate.”

Further, the Times failed to note that another question from Republican polling more directly addresses the debate over judicial nominees and suggests that the public opposes the “nuclear option” of eliminating senators' ability to block a nomination using the filibuster. The Associated Press reported on April 21 that the "[p]rivate Republican polling" indicated “37 percent support for the GOP plan to deny Democrats the ability to filibuster judicial nominees, while 51 percent oppose.” The Hill also reported on this result, though it is not clear from either article whether the question was from the Ayres poll (only parts of which Ayres has released) or a different Republican poll.

Echoing the Times' unnamed Republicans, Fox News Washington managing editor Brit Hume sought to dismiss the Post poll's results by using the Ayres poll to demonstrate that “the framing of a poll question can influence the outcome.” On the April 26 edition of Fox News' Special Report with Brit Hume, host Hume also mischaracterized the Ayres poll's question: “When Republican polls said, quote, 'Even if they disagree with a judge, Senate Democrats should at least allow the president's nominations to be voted on,' 81 percent said they agreed.”

Other efforts at discrediting the Post/ABC News poll have been widespread in the conservative media. For example, the Rev. Jerry Falwell falsely argued on the April 26 edition of Fox News' Hannity & Colmes: “The fact is that all of the surveys that have been done by anyone asking the right question, a majority of the American people want a majority of the U.S. Senate to select, to advise and consent, and select the president's nominees.”

The Post/ABC News poll asked two questions relating to the “nuclear option.” The first question: “The Senate has confirmed 35 federal appeals court judges nominated by Bush, while Senate Democrats have blocked 10 others. Do you think the Senate Democrats are right or wrong to block these nominations?” Forty-eight percent responded that Democrats were right to do so, 36 percent believed they were wrong to do so, 3 percent said it was “right in some cases, wrong in others,” and 13 percent had no opinion. The second question: “Would you support or oppose changing Senate rules to make it easier for the Republicans to confirm Bush's judicial nominees?” It found that 66 percent oppose changing the rules, 26 percent support it, and 8 percent have no opinion.

On April 26, Wall Street Journal OpinionJournal.com editor James Taranto asserted that the Post poll was “phony” because neither question on judicial nominations “used the word filibuster” or “even described the procedure.”

But other polls that have specifically mentioned the filibuster also indicate majority opposition to the “nuclear option.” An NBC News/Wall Street Journal poll conducted March 31-April 3 found that 50 percent of respondents believe the Senate should “maintain the filibuster rule” compared to 40 percent who believe the Senate should “eliminate the filibuster for judicial nominations.” A Newsweek poll conducted March 17-18 (summarized here) found that 57 percent of respondents oppose “changing Senate rules to take away the filibuster and allow all of George W. Bush's judicial nominees to get voted on by the Senate,” compared to 32 percent who favor it.

On the April 26 edition of MSNBC's Scarborough Country, Media Research Center (MRC) president L. Brent Bozell III claimed the poll was evidence that "The Washington Post and ABC are on the side of the Democrats." Earlier that day, MRC released a “CyberAlert” that also attempted to discredit the poll:

[T]he questions in the poll failed to point out the unprecedented use of a filibuster to block nominees who have majority support while they forwarded the Democratic talking point that “the Senate has confirmed 35 federal appeals court judges nominated by Bush” and painted rules changes as an effort “to make it easier for the Republicans to confirm Bush's judicial nominees,” not as a way to overcome Democratic obstructionism.

Nationally syndicated radio host Rush Limbaugh read aloud from the MRC report on the April 26 edition of The Rush Limbaugh Show and stated: “So an accurate poll question would be, 'Do you support or oppose the Democratic Party's unprecedented effort to filibuster judicial nominees, which has never been done before?' ”

But the Democrats' use of the filibuster is not unprecedented, as Media Matters for America has noted. And contrary to MRC's assertion that mentioning the 35 federal appeals court judges that the Senate has approved is “forward[ing] a Democratic talking point,” the poll also mentioned the 10 nominees that Senate Democrats have blocked. An authentic talking point would more likely note that the Senate has to date approved 205 of Bush's 215 judicial nominees who have come to the full Senate for consideration.