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The (silent) filibustering of Caitlin Halligan’s nomination to the D.C. Circuit is getting attention mainly because of its very different style than Rand Paul’s showy “talking filibuster” of John Brennan’s confirmation. It also had a different effect. For his thirteen hours on the floor Paul secured a letter from the Attorney General disavowing any legal claim the president could order the killing of a non-combatant American citizen on American soil without due process—something the administration had never advanced in the first place. Paul also succeeded in making himself a big conservative celebrity and a viable (or at least non-dismissable) presidential candidate for 2016. The filibustering of Halligan has probably succeeded in killing her nomination.
If you are an especially civil liberties-minded person, perhaps Paul’s filibuster remains a much bigger deal, even though its ostensible target was confirmed. But the Halligan filibuster is part of a larger pattern which is in danger of leaving Barack Obama with a significant lighter footprint on the federal judiciary than his two terms in office would be expected to merit. At New Yorker, Jeffrey Toobin has the story:
[S]enatorial entropy has taken an enormous toll on President Obama’s judicial appointments. This was the second time that Halligan received majority support, but, because she never passed the threshold of sixty, her nomination now appears doomed. And so, in the fifth year of his Presidency, Obama has failed to place even a single judge on the D.C. Circuit, considered the second most important court in the nation, as it deals with cases of national importance….
Judicial appointments represent one of the great missed opportunities of the Obama Presidency. In his first term, especially in the first two years, Obama himself bore much of the blame for this. When Democrats controlled sixty Senate seats, Obama was slow to nominate lower-court judges, and his moment of greatest leverage passed. But, since the 2010 midterm elections, Republicans have been at fault, almost entirely. Most nominees are not formally stopped, as Halligan was, but rather are delayed and delayed. Bush’s nominees got votes within weeks; Obama’s take months, even for uncontroversial selections. William Kayatta, Jr., nominated to the First Circuit, waited three hundred days for a vote and then received eighty-eight votes for confirmation. Republicans delay because they can. “The Republican Senators are not punished for it, and they are rewarded by their base,” a senior administration official said.
While Toobin is obviously peeved at the squandering of Obama’s opportunity to get judicial nominees confirmed back when Democrats had 60 (or later 59) votes in the Senate, he concedes there is not a great deal the president can do about the problem now, absent significant filibuster reform.
There’s a broader issue that Toobin doesn’t discuss in his post on Calligan, but that I’m sure he understands well as someone who has written a great deal about the rise of the conservative legal movement: these days conservatives are a lot more focused on judicial appointments than the progressives who in the recent past came to think of the judiciary as an ally, perhaps forgetting the ancient Anglo-American history of judges as a bulwark for privilege. Now that conservative judges (at least at the top of the judicial pyramid) have lost most of their inhibitions about overturning precedents, they provide an exceptional avenue for the achievement and consolidation of right-wing policy goals.
For all their occasionally “populist” talk, that’s fine with conservative politicians and activists, who have no inherent objections to living under an oligarchy of nine unelected jurists serving lifetime terms so long as they are supporting the “correct” doctrines. Indeed, that’s sort of the ideal scenario for “constitutional conservatives” who deny that popular majorities have the power to overturn the absolute private property rights, the absolute fetal rights, and other absolutes they believe to be essential permanent features of the Founders’ (if not Almighty God’s) design.
If Republicans succeed any time soon in gaining the presidency and a majority in the Senate, a hypocritical assault on judicial filibusters like the one that very nearly led to the “nuclear option” in 2005 would not at all be surprising. Conservatives understand judicial appointments are especially valuable in no small part because they endure. Progressives need to play catch-up in regaining this understanding, but as Toobin suggests, it may be too late for that realization to bear fruit in this presidency.
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Jim, FL on March 12, 2013 3:33 PM:
It's also worth pointing out that this filibuster took place on the same day Obama hosted the Republican Senators for dinner, and everyone of his guests took part in that filibuster. None of the Sabbath Gasbag Poobahs who say Obama's lack of sociability saw fit to mention this. And not even Jake "Where Have You Been?" Tapper noted that this filibuster was (as near as I can tell) a muscle flex by the NRA.
The Sabbath Gasbags are the tar sands polluting the political climate of Washinton. The Republicans are just playing under the rules created by Tom Brokaw's stupid.
smartalek on March 12, 2013 3:50 PM:
"In his first term, especially in the first two years, Obama... When Democrats controlled sixty Senate seats"
This is one of the most mendacious, and most damaging of all the manifold Publican zombie lies, and it's once again especially disheartening (and enraging) to see not one, but two, of "our" commentators giving support to it, even if only by implication.
The Dem's "controlled" 60 Senate seats for less than 6 months, and even then, only if you count a conspicuous NON-Dem (the vile and self-defined "Independent" Joe LIEberman) as a Dem.
Publican dilatory tactics kept Al Franken out of the Senate til just a few months before we lost Ted Kennedy.
So "we" never actually "controlled" 60 votes.
If the New Yorker's star legal writer, and WaMo's main blogger can't get this relatively uncomplicated truth right, what possible hope is there that Jane and Joe Sixpak ever will be free of the associated delusion, hm?
Don SinFalta on March 12, 2013 4:13 PM:
and therefore, probably, in my lifetime.
jjm on March 12, 2013 4:14 PM:
"In his first term, especially in the first two years, Obama... When Democrats controlled sixty Senate seats"
You are so right @smartalek! This nonsense was coined and minted by the GOP and for ANYONE to take it seriously does a deep disservice to history and its factual basis.
danimal on March 12, 2013 4:14 PM:
If the Senate Dems had the fortitude, these filibusters could be stopped, or at least have the spotlight shine brightly on them. Shut the Senate down until, make the Republicans responsible for obstruction. Keep putting the filibustered judges on the calendar and do not schedule anything else. Want a budget? Vote on judges. Want immigration reform? Vote on cabinet nominees. Make the choice clear: up or down votes on these before anything else is put on the calendar. Message discipline and fortitude are needed, but it can be done.
But then, we're talking about Senate Dems, aren't we?
c u n d gulag on March 12, 2013 4:38 PM:
I lay this at the feet of Harry Reid, and all of the old-time "Centrist" Democratic Senators, who've had three, 3, three, THREE, T-H-R-E-E, OPPORTUNITIES, to change the filibuster rules, but didn't.
It's not like we real Liberals didn't see this coming. The Republicans made it evident from before Obama's hand hit the Bible the first time, that they were going to do AND and EVERY thing in their power, to not only make his Presidency as unsuccessful as possible, but his legacy, too.
And so, even if the demographics change, there will a lot of ancient Conservative judges to muck-up progress for generations.
WAKE UP!!!
People say, "Well, we'll need the filibuster in the future when the Republicans are back in power, and want to do something evil and/or stupid!"
Well, maybe if we Americans had to live through, and still survived, what Republican Presidents wanted their Congresses to do, people might actually see them for the stupid and evil assholes that they really are.
bdop4 on March 12, 2013 4:42 PM:
Agree with SmartAlek that the "Senate control" meme is complete BS. And I take issue with the statement that "it may be too late for that realization to bear fruit in this presidency."
We have three years left in this presidential term, and a lot can be changed if the Dems (Harry Reid in particular) and the WH start making this a "front and center" issue.
As for the "negative consequences" of real filibuster reform I ask, "what's the difference?" The repubs control the agenda, whether in the majority or the minority.
It's time for Dems to propose, and run on, policies that provide real solutions and stop pretending that anything the GOP currently offers will fix anything.
JMG on March 12, 2013 4:51 PM:
Obama could but won't go to the Democratic caucus and tell them, either the filibuster is voted out on all appointments, judicial and executive, or I will resign as will Joe Biden and I will explain to the nation that it's YOU who made John Boehner President and that no Democrat should vote for the following list of names of Senators who refused to do it.
That caucus contains a deadly decisive minority of cowards. Obama needs to make that cowardice work for him.
PS: Of course this will never happen. It's quite beyond Obama's nature and imagination. I don't mean that as complete criticism. His style has been rewarded with its successes, too.
jeri on March 12, 2013 5:53 PM:
1. It's truly a shame Republicans didn't employ the nuclear option. That was probably our best chance for filibuster reform.
2. Why do Democratic Senators place such a high value on keeping the option for a future filibuster? We all know that if the need arises, they will be afraid to use it just as they were the last time they were in the minority. I recall a gang of something agreeing that filibusters of judicial appointments was out of bounds. At least, filibusters of Republican judicial appointments.