March 11, 2013

Our View: Judicial filibuster shows same old Senate

The Republican minority continues to use the Senate rules to prevent appointments.

The filibuster everyone was talking about last week was Kentucky Republican Rand Paul's 13-hour marathon speak-out on drone warfare, delaying the confirmation of CIA director-designee John Brennan.

click image to enlarge

Senate Minority Leader Mitch McConnell, R-Ky., led a filibuster that blocked the nomination of Caitlin Halligan to the U.S. District Court of Appeals for the D.C. Circuit.

The Associated Press

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Senate Republicans last week blocked the confirmation of federal appeals court nominee Caitlin Halligan for the second time, denying President Barack Obama a key judicial appointment.

2005 file photo/The Associated Press

Paul vowed to speak until his voice gave out, which it eventually did around midnight. The next day, the Senate voted to approve Brennan, who will take the post.

But there was another filibuster last week that got much less attention even though it was far more effective.

Led by Senate Minority Leader Mitch McConnell, the other Republican from Kentucky, this one blocked -- probably for good -- the nomination of Caitlin Halligan to the U.S. District Court of Appeals for the D.C. Circuit.

Halligan has strong legal credentials, including six years as New York state's solicitor general, and has argued 50 cases before the Supreme Court.

But McConnell did not want to allow her nomination to come up for a vote, and all but one of his Republican senators, Lisa Murkowski of Alaska, voted with him, which prevented the Democrats from getting the 60 votes needed to end debate and leaves the seat on the court vacant.

This means that in his fifth year in office, President Obama has not been able to name a single judge to this important court, which is run by conservative Bush appointees.

It also means that the supposed reforms to the filibuster negotiated by McConnell and Democratic leader Harry Reid have not ended minority rule and dysfunction in the U.S. Senate. McConnell and some other Republicans were very clear on why they blocked the nomination. They disagree with various arguments Halligan has made on behalf of clients and predict that she would be an "activist" judge.

Maine Sen. Susan Collins had a different rationale for her vote. She unearthed a 2006 letter signed by Democratic senators who opposed a Bush administration appointment to the court by saying that there were too many judges on it already.

"My vote solely reflects my determination that this seat does not need to be filled by anyone," said Collins, a Republican. If Halligan were to be nominated for a different vacancy, "I would likely vote to confirm her."

Why a vote to continue debate on a nominee is the right place to make that point is an issue for parliamentary scholars. But the effect is easy to understand. The filibuster worked. The same cannot be said for filibuster reform.

This is the latest in a long line of killed judicial nominations, and each party has been able to thwart the other. But this kind of procedural gamesmanship made the last Congress one of the least effective and least popular in history. It's hard to see a way out of this, but a way out is what we need.


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