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March 07, 2013 10:09 AM Filibusters and Judges

By Jonathan Bernstein

The Senate yesterday defeated cloture on the Caitlin Halligan nomination for the DC Circuit Court. The vote was 51-41, with Harry Reid switching to “no” for procedural reasons. I don’t know the details of the vote yet; last time she came up for cloture during the 112th Congress, every Democrat and one Republican supported her.

After the vote, I saw several people on twitter talking about the supposed failure of Senate reform I wrote yesterday over at PP about why that’s wrong; basically, neither the reform package that passed or the Udall/Merkley package that failed would have changed this outcome, and there’s some evidence that reform is having some positive effects.

Ian Millhiser made the fair point that even if Halligan doesn’t show that reform “failed”, she (and Hagel) shows that it was “inadequate.” On Hagel, regular readers know I agree: I support simple majority cloture for executive branch nominations.

But on lifetime judicial nominations the situation is more complicated. A single nomination defeated by  filibuster simply isn’t enough to show that the Senate is dysfunctional. Certainly, there’s a case to be made that simple majority confirmation of these nominations should be sufficient, but in my view the stronger case is that intense, large, minorities should be especially protected when a lifetime appointment is at stake.

The problem is that we’re probably not talking about a single nomination here. There are four openings no the DC Circuit court, and the Senate hasn’t confirmed a single Obama nominee for it. Whatever the merits of a large, intense, minority being able to prevent the confirmation of a single judge, it’s hard to see a legitimate justification for allowing a minority to roadblock any nomination that the president might make to this court.

However, it’s not really clear that Republicans are roadblocking all, or a subset, of appellate judges. There have been two nominations confirmed for other Circuit Court positions this year, after all. Halligan’s supporters may believe that the stated objections to her are just cover for an absolute refusal to confirm anyone that the president might nominate, and they certainly have a right to criticize opposition to her, but we don’t really know yet what’s going on. For that DC Circuit specifically, two of the four openings still don’t have nominees. For the other one, Obama sent up Sri Srinivasan back in June and he didn’t get a vote; the Judiciary Committee hasn’t acted on him yet this year. So maybe this is part of a roadblock, and maybe it isn’t.

Basically, there’s really no way (at least not that I’ve seen or can imagine) to make a rule that it’s okay to filibuster specific nominations you really hate but not okay to roadblock all nominations. No, it doesn’t work to allow only a certain number of filibusters…whatever rule you choose is going to be possible to game for either the majority or the minority, and so it won’t actually do what you intend. So there we are. It’s going to come down to whether minority obstruction (within the current rules) is so extreme that the majority feels it has no choice but to change those rules. We’re not there yet.

[Originally posted at A plain blog about politics]

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Jonathan Bernstein is a political scientist who writes about American politics, especially the presidency, Congress, parties, and elections.

Comments

  • rayspace on March 07, 2013 11:50 PM:

    A little context on the Halligan nomination might help you change your mind, Jonathan. This is the FIFTH time that Obama has nominated Halligan to the same seat (9/29/10; 1/5/11; 6/11/12; 9/19/12; 1/3/13).

    While there is likely a lot of truth to the idea that the Republicans are slow-walking any D.C. Circuit Court nomination, they have a particular antipathy for Halligan, because the NRA has told them to. The NRA has made it very clear that they are scoring votes on the Halligan nomination, and if I'm not mistaken, they may be counting them double.

    Also, there is the fact that Halligan, should she be confirmed for the D.C. Circuit, is a potential Supreme Court nominee, maybe even for the next vacancy (Ginsburg in 2015?). Roberts and Thomas were both on the D.C. Circuit for only about 2 years before ascending to the Supreme Court, so there's precedence for a short tenure there.

    I admire Obama's persistence on this nomination, but I don't know why he and Reid don't try to worsen Republican outcomes with women by pointing out how focused the GOP is on killing this nomination.