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December 06, 2011 1:30 PM GOP kills qualified judicial nominee with filibuster

By Steve Benen

This is simply an outrageous abuse that further undermines the integrity of the Senate.

Senate Republicans on Tuesday filibustered the nomination of Caitlin Halligan to the U.S. Court of Appeals for the District of Columbia Circuit, blocking a nominee tapped last year by President Obama to serve on one of the country’s most powerful courts.

Tuesday’s final roll call vote on cutting off debate was 54 to 45.. One Republican — Sen. Lisa Murkowski (R-Alaska) — joined all 53 members of the Democratic caucus in voting to move ahead with Halligan’s nomination, leaving the former New York state solicitor general six votes short of the 60 votes necessary for ending debate.

Sen. Orrin Hatch (R-Utah), who has never voted to filibuster a judicial nomination, voted “present.”

The “Gang of 14” struck a deal six years ago, limiting judicial filibusters to “extraordinary circumstances.” That deal now appears to be dead — all of the Gang’s Republican members who are still in office joined the filibuster of Hilligan today. That includes so-called moderates like Susan Collins, Olympia Snowe, and Scott Brown.

Maybe, the GOP might argue, Hilligan counts as being so “extraordinary” her nomination cannot be subjected to a vote? Hardly. She’s a clearly qualified former New York solicitor general who has earned wide, bipartisan praise. A joint letter from 21 attorneys who’ve worked with her, including some high-profile conservatives like Miguel Estrada, explained, “Caitlin also has an ideal judicial temperament. She brings reason, insight and judgment to all matters. Even those of us who have been on opposite sides of Caitlin in litigation have been greatly impressed with her ability and character. We have no doubt that she would serve with distinction and fairness.” A joint letter from several law-school deans and professors added, “Ms. Halligan’s legal credentials, experience, and accomplishments make her exceptionally well-qualified to serve on this court.”

And yet, 46 out of 47 Republican senators wouldn’t even give her a vote. Why? Because they said Halligan is sympathetic towards marriage equality and once signed a brief in a liability suit against gun manufacturers. Even for the alleged moderates, that was enough.

They could have voted against her, but these GOP senators said that wasn’t good enough.

What’s more, let’s not forget what many of these same Republicans said about judicial filibusters before there was a Democratic president. For some, their own actions today weren’t just wrong; they were literally unconstitutional.

Here’s a list ThinkProgress put together in May:

Lamar Alexander (R-TN) : “I would never filibuster any President’s judicial nominee, period. I might vote against them, but I will always see they came to a vote.”

Saxby Chambliss (R-GA) and Johnny Isakson (R-GA): “Every judge nominated by this president or any president deserves an up-or-down vote. It’s the responsibility of the Senate. The Constitution requires it.”

Tom Coburn (R-OK): “If you look at the Constitution, it says the president is to nominate these people, and the Senate is to advise and consent. That means you got to have a vote if they come out of committee. And that happened for 200 years.”

John Cornyn (R-TX): “We have a Democratic leader defeated, in part, as I said, because I believe he was identified with this obstructionist practice, this unconstitutional use of the filibuster to deny the president his judicial nominations.

Mike Crapo (R-ID): “Until this Congress, not one of the President’s nominees has been successfully filibustered in the Senate of the United States because of the understanding of the fact that the Constitution gives the President the right to a vote.”

Chuck Grassley (R-IA): “It would be a real constitutional crisis if we up the confirmation of judges from 51 to 60, and that’s essentially what we’d be doing if the Democrats were going to filibuster.”

Mitch McConnell (R-KY): “The Constitution of the United States is at stake. Article II, Section 2 clearly provides that the President, and the President alone, nominates judges. The Senate is empowered to give advice and consent. But my Democratic colleagues want to change the rules. They want to reinterpret the Constitution to require a supermajority for confirmation.”

There are other examples. Sen. Jim DeMint (R-S.C.) said “denials of simple votes on judicial nominees” are “unconstitutional.” Sen. Lindsey Graham (R-S.C.) said, “I think filibustering judges will destroy the judiciary over time. I think it’s unconstitutional.” Sen. Richard Shelby (R-Ala.) argued, “Why not allow the President to do his job of selecting judicial nominees and let us do our job in confirming or denying them? Principles of fairness call for it and the Constitution requires it.”

How many of these senators filibustered Halligan’s nomination today? All of them.

What’s more, senators like Scott Brown, Susan Collins, Olympia Snowe, and John Thune had never supported a judicial filibuster in their careers before 2011. How many of them refused to allow a qualified nominee to have an up-or-down vote? All of them, too.

What an embarrassment.

Steve Benen is a contributing writer to the Washington Monthly, joining the publication in August, 2008 as chief blogger for the Washington Monthly blog, Political Animal.

Comments

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  • Josef K on December 06, 2011 1:51 PM:

    Exhibit #1,000,000 on why the Senate rules and procedures need to be re-vamped (radically). The entire culture of the instition has become so cut-off from real-world consequences its a little amazing these fools can walk down the street without fear.

    Things feel like they're moving towards a breaking point somewhere, which I doubt will be all that pretty to watch or survive.

  • Mark-NC on December 06, 2011 1:52 PM:

    And, as always, The Repugnant Ones have two things in their favor:

    1. Our joke of a press won't report it so nobody will know.

    2. When Dems are the minority, they don't have the guts to return the favor.

    If I were Republican, I'd do the same thing. THERE IS NO DOWNSIDE!

  • Gummo on December 06, 2011 1:55 PM:

    Sadly, Mark-NC is 100% correct on all counts.

  • SYSPROG on December 06, 2011 1:55 PM:

    OK DNC DO YOUR THING...oh and all you cowardly dem Senators? Stop with the 'bipartisanship crap' and make sure that every single person in your STATES know this happened. STAND UP for our rights instead of the rights of Republican senators.

  • Mitch on December 06, 2011 1:56 PM:

    "What an embarrassment."

    Indeed. It is an embarrassment to this nation, to the Constitution and to the ideals for which we are supposed to stand.

    Unfortunately the GOP has no shame, and will never be embarrassed by their conduct. In a sane world their party would crumble due to their constant hypocrisy. Unfortunately this is not a sane world.

    Even more unfortunately many (if not most) Americans are totally unaware of this sort of behavior. The media certainly isn't going to point it out.

    Like Ben Franklin said, we have a Republic, if we can keep it. But with the modern ignorance of our population and the horrible actions of these elected officials I wonder how much longer we can keep it.

  • BobC2443 on December 06, 2011 1:58 PM:

    I hope the President will use his power of recess appointments and make a whole bunch.

  • DCSusie on December 06, 2011 2:00 PM:

    She's shown signs of being wrong gays and guns - clearly, she's threat to the survival of the republic!

  • John PM on December 06, 2011 2:03 PM:

    The Constitution allows each house of Congress to make its own rules. However, where the rules conflict with the Constitution, the rules should be declared unconstitutional. I would like to see a presidential nominee (not necessiarily a judicial nominee) bring suit against the Senate arguing that the filibuster for presidential appointments is unconstitutional because it actually prevents the Senate from fulfilling its "advise and consent" function under the Constitution. Any takers?

  • golack on December 06, 2011 2:03 PM:

    Bob--there are no recesses anymore...

  • TreeTop on December 06, 2011 2:07 PM:

    " . . . all of the Gang's Republican members who are still in office joined the filibuster of Hilligan today. That includes so-called moderates like Susan Collins, Olympia Snowe, and Scott Brown."

    Scott Brown wasn't a member of the Gang of 14 because he wasn't in the Senate six years ago.

  • Krowe on December 06, 2011 2:11 PM:

    Not to quibble, but they killed the nomination, not the nominee. Not that I'd put it past 'em.

  • T2 on December 06, 2011 2:14 PM:

    No Wins for Obama allowed.

  • zeitgeist on December 06, 2011 2:18 PM:

    you didn't even have to change the name "Liu" to "Halligan" after the jump and it still made sense.

    1) The Gang of 14 was formed to avert the Nuclear Option that the Republicans had proposed to force votes. Why have we not heard about this Nuclear Option from Reid and Co.?

    2) Why does the WH keep making these nomination and then spending no political capital to promote and defend them? It is a wonder any qualified people with good jobs and lives would allow themselves to be nominated.

    3) I'm curious how the courts -- who know they are severely understaffed, and where even Republicans like Rehnquist and Roberts annually give State of the Judiciary addresses decrying the nomination fights -- would take a case to require the Senate to give an up or down vote as the meaning of the advise and consent clause.

  • martin on December 06, 2011 2:21 PM:

    What an embarrassment.

    The real embarrassment is the Dem members of the Gang of 14 who worked out the deal. The ultimate Charlie Browns.

    Just how damned steep is the learning curve for Democrats?

  • Joe Buck on December 06, 2011 3:08 PM:

    'Sen. Orrin Hatch (R-Utah), who has never voted to filibuster a judicial nomination, voted “present.”'

    Nonsense. Orrin Hatch knows the rules. Voting "present" on a cloture vote is, in effect, voting to filibuster.

  • Perspecticus on December 06, 2011 3:26 PM:

    "Exhibit #1,000,000 on why the Senate rules and procedures need to be re-vamped (radically)."

    They will be. Under teh next GOP Senate majority. And within days of taking the majority, too.

  • Tom Dibble on December 06, 2011 3:30 PM:


    @Joe - I came here to say the exact same thing.

    I see a few problems here, which is why this keeps happening:

    #1, obviously, there is no major press on this obstructionism. No consequences because no one knows about it; the most effect it will have on any of the filibusterers is a statistics on a negative ad that their constituents will assume must have been for good reason.

    #2, even if someone saw an article, without knowing the details of a filibuster, they'd end up thinking that, for instance, Hatch jut abstained from the argument.

    To be clear: there is no abstention from a filibuster, and a filibuster is not something that gets voted on. You vote to END the filibuster (or rather, to close the motion, where the filibuster is the action of keeping the motion open). Orrin Hatch never "voting to filibuster" either means that he has always voted for closure (and his track record has just been broken) or that he has never voted for something that is never voted on anyway. He also never voted to contract athlete's foot nor voted to wake up.

    Deathly silence from most of the media, combined with poor and convoluting reporting amongst those who *do* report on it makes this a no-lose gambit for the Republicans.

  • chopin on December 06, 2011 3:37 PM:

    Today's GOP party. Not just a gaggle of hypocrites. An un-American gaggle of hypocrites hell bent on destroying this country.

  • International Mikey on December 06, 2011 3:43 PM:

    When you try to point this out to some of your more conservative friends or family, you get a blank stare or you are accused of making things up. The Republican Senate Caucus are nothing but a bunch of pigs. I truly hate them and hope that some day, Dems wake up and cut them off at the knees anytime they get a chance. Harry Reid is an embarrassment.

  • Jan on December 06, 2011 3:49 PM:

    I just called Scott Brown's office once again to complain about his cowardice, hypocrisy, and failure to live up to his claims about being a "moderate." I also emailed him your entire piece on Caitlin Halligan so he could read what his GOP colleagues used to think about the filibuster, and asked him to explain the GOP's hypocrisy.

  • jjm on December 06, 2011 3:53 PM:

    Well in Obama's brilliant speech today in Osawatomie, Kansas,all of the GOP's ludicrous positions were hung out to dry for all to see, in the most plain-spoken terms. And the audience ate it up!

    Obama has allowed the GOP to simply let it all hang out just long enough that their niggardliness and bootlicking of the wealthy will become THE defining issue of the 2012 campaign--and not only for the presidency but for the congressional races as well.

    He's an absolutely masterful politician.

    Add to that the start up now of the MLR provision in the ACA -- no more than 20% overhead for the health insurers (though even that is still obscene) ... Smart cookie.

    And it made me even wearier with the headlines grabbed by grifters, fools and slick liars known as GOP candidates.

    Sa Congress dead set only on undoing what Obama does, he made it clear, is a Congress bent on reverting to the defrauding of the people that went on under Bush.

  • flyonthewall on December 06, 2011 3:59 PM:

    Why does the Constitution call for the VP to cast a deciding vote in the Senate should there be a tie? With this 60 vote threshold, it seems to be unconstitutional, regardless if the Senate is allowed to make their own rules.

  • PEA on December 06, 2011 9:25 PM:

    Wish the Occupy folks in these GOPr's neighborhoods would occupy the senators' offices or the local newspaper offices and attract attention to (1) how stupid the senators' actions (inactions) are and (2) who the senators' big funders are and how reprehensible it is for them and their misinformed far-right voters to hold everyone else hostage by forcing the senators to act in this way or lose the election. Occupiers: hold the media accountable for paying attention to what is really going on and how it hurts us all!

  • exlibra on December 07, 2011 12:25 AM:

    Exactly what the Democrats did to Miguel Estrada. -- Bill Smugs, @10:19 PM

    "Funny" (as in "weird", not as in "ha ha"). The case of Miguel Estrada has been pulled out, like a rabbit from a magician's well-worn hat, *every-effing-time* Repubs nixed *any* of of Obama's nominations. Is Estrada *really* worth hundreds of other filibustered nominations? On top of which, Estrada has -- surprise! surprise! -- endorsed Halligan. But, when you have nothing, any piece of BS will do, I guess...

  • Patango on December 07, 2011 2:59 AM:

    Josef K on December 06, 2011 1:51 PM:

    Things feel like they're moving towards a breaking point somewhere, which I doubt will be all that pretty to watch or survive."

    I came to the exact same conclusion after reading this , when I here people say BOTH PARTIES R @ FAULT , or some version of that ,it confirms these poser moderate stooges will let the GOP roll over and destroy everything , " SO LETS ALL COMPROMISE WITH THAT!"(?) America either needs to divide in 1/2 , or crush the ass hat conservatives , and I'm not even a radical , swear to god , the destructive force called the T GOP are the radicals that need put in their low life places.....
    I'm not the one out lying about america , and trying to pull apart and break down our constitutional government , they are .....

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