Federal Courts and Nominations

Filibuster Tests Senate Agreement on Judicial Nominees


By Humberto Sanchez 
Roll Call Staff
Dec. 6, 2011, 6:38 p.m.

Senate Democrats on Tuesday warned that a GOP-led filibuster of a judicial nominee could threaten future nominees and that the move calls into question a six-year-old bipartisan détente on judicial filibusters.

“I am concerned that today the Senate is backing away from the 2005 agreement that the minority would only block judicial nominees in extraordinary circumstances,” Senate Majority Leader Harry Reid (D-Nev.) said in statement.

On a 54-45 vote, the Senate failed to cut off debate, or invoke cloture, on the judicial nomination of Caitlin Halligan to join the District of Columbia Circuit Court of Appeals, falling short of the 60 votes to overcome a filibuster.

“Since Ms. Halligan’s nomination clearly does not meet that standard, Republicans today lowered the bar for filibustering judicial nominees,” Reid continued.

All Democrats voted to cut off debate. Sen. Lisa Murkowski of Alaska was the only Republican to vote to cut off debate. Sen. Orrin Hatch (R-Utah) voted present.

Murkowski said that Halligan deserved an up-or-down vote.

“I stated during the Bush Administration that judicial nominations deserved an up-or-down vote, except in ‘extraordinary circumstances’ and my position has not changed simply because there is a different President making the nominations,” she said.

“Let me be clear to my constituents and the President of the United States: This was a cloture vote to proceed to an up-or-down decision. I did not support Ms. Halligan’s candidacy and would never have voted for her confirmation.”

Senate Judiciary ranking member Charles Grassley (R-Iowa) said he opposed the nomination because of her views, but also because he doesn’t believe the position is needed.

“It’s not a case of filibustering this judge just because of what her philosophy is,” Grassley said. “That is a good reason for doing it, but whether or not this vacancy ought to be filled” is another matter. The slot that Halligan was nominated for, to replace Supreme Court Chief Justice John Roberts, has been vacant for years.

“This case was raw partisanship,” said a Senate Democratic leadership aide. “This was a precedent-setting vote that could throw future nominees into chaos.”

Republicans by and large argued that the judge’s positions allow them to invoke the extraordinary circumstances clause under an informal agreement developed by a group 14 senators, seven from each party, in the spring of 2005 that broke a logjam on judicial nominees.

Prior to the “gang of 14’s” accord, then-Senate Majority Leader Bill Frist (R-Tenn.), was considering a change in Senate rules that would eliminate use of the filibuster to prevent judicial confirmation votes. Frist’s maneuver was dubbed the “nuclear option,” or, as he called it, the “constitutional option” and the gang formed to address the issue.

Nine of the original members remain in the Senate. Under the accord, the members of the gang would not vote with their party on filibustering judicial nominees, except in the case of extraordinary circumstances as defined by each individual Senator.

The Senate has for the most part continued to adhere to the agreement. Only two judges have been filibustered since 2005: Goodwin Liu and Halligan.

“I consider this an extraordinary case,” said Senate GOP Conference Chairman Lamar Alexander (Tenn.).

Sen. Charles Schumer (D-N.Y.), who runs the Senate Democrats’ policy and communications operations, took to the Senate floor to declare that the vote violated the agreement. Halligan is from New York and Schumer was leading the effort to get her nomination through the Senate.

“The approach taken by Senate Republicans will have lasting consequences beyond this one nomination. It seems to me that a vote against this nominee could well be a vote to declare the gang of 14 agreement null and void,” Schumer said.

Senate Republican leadership aides charged that Schumer does not have credibility on the issue, saying he led the charge on judicial filibusters when his party was in the minority in 2003 and 2005.

Doug Kendall, president of the Constitutional Accountability Center, also said this was a watershed moment.

“Let me be clear: Senate Republicans blocked a supremely qualified nominee today,” Kendall said in a release. “Halligan is a lawyer’s lawyer. She clerked for the D.C. Circuit and the U.S. Supreme Court, she has a long and distinguished record of service in New York, and she has support across party lines — including from former George W. Bush nominee Miguel Estrada. She is an exemplary nominee, supported by a majority of Senators. She was first nominated in 2010, and she should have been sitting on the D.C. Circuit by now.”

Republicans disagreed and argued that the agreement is still in effect.

“We said that in extreme circumstances,” a filibuster could be made, said gang of 14 member Sen. John McCain (R-Ariz.). “She clearly fits in that category.”

Sen. Roger Wicker (R-Miss.) said that “Ms. Halligan’s publicly stated positions on the Second Amendment, terrorism, and other legal questions are troubling. Ms. Halligan’s views reflect someone who believes in vast judicial powers to shape and rewrite the law, which is a threat to our tradition of American law.”

Also working against Halligan was Heritage Action for America, which “key voted” her nomination, arguing that her position on gun rights was unpalatable.

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