Tuesday, December 6, 2011

Gang of 14, RIP (Still)

The Senate today defeated by filibuster a key judicial nomination, Caitlin Halligan, named for the DC Circuit. All 53 Democrats and Republican Lisa Murkowski voted for cloture; 45 Republicans voted no, and Orrin Hatch voted "present", which is functionally equivalent to voting no in this context (in which 60 yes votes are needed).

As Felicia Sonmez notes, all four remaining "Gang of 14" Republicans voted against cloture, as they did in the case of Goodwin Liu. The deal back then was that the 14 wouldn't support a filibuster except in undefined, or self-defined, "extraordinary circumstances." However, it's been clear that the agreement was a dead letter since about January 20, 2009, although it didn't matter a lot in the 110th Congress, when 60 votes for cloture were relatively easy to come by -- although even then, GOP filibusters slowed down many nominations, even though they only had the power to chew up Senate time and not to ultimately defeat them. And while only two nominations have been defeated by filibuster so far, Republicans continue to insist on 60 votes for every nomination (and therefore are filibustering every single nomination), and have bottled up quite a few others that Harry Reid isn't bringing to the floor because they may not have the votes needed to break the filibuster.

In other words, we're moving more and more rapidly towards a system in which appellate judges cannot be confirmed except in the rare case of a president happening to have a very large party majority in the Senate, something that happens rarely.

In my view, that's simply not stable; most likely sooner rather than later, the Senate will go nuclear and eliminate the 60 vote requirement for cloture on judicial nominees. In my view, that's too bad. I would love a real "extraordinary circumstances" standard, in which the out-party filibustered rarely, but used that power, using it instead to negotiate with the president for non-extreme judges. But that's not what's happening now; more or less every nomination is filibustered by at least a small group of Republicans, and most nominations are filibustered by most of the Republicans. As far as I can tell, there was nothing particularly unusual about Halligan; Republicans opposed her because they don't want a mainstream liberal on the DC Circuit, end of story.

Of course, we would know more about this if Barack Obama was nominating judges more quickly and Harry Reid was bringing them to the floor and forcing votes more quickly. So far, I believe that eight circuit court nominees have been confirmed this year, and two defeated by filibuster. There are four more circuit court nominees approved by committee and waiting floor action. In my view, Reid should bring them all up...might as well do a rolling vote, all four in a row. That, presumably, would make it very clear that for most Senate Republicans, what counts as "extraordinary circumstances" is "nominated by a Democrat."


  1. "In other words, we're moving more and more rapidly towards a system in which appellate judges cannot be confirmed except in the rare case of a president happening to have a very large party majority in the Senate, something that happens rarely."

    I don't think this is right. Republican judges, I suspect, will continue to be confirmed in all circumstances.

  2. And it’s not just judges. All nominations and every piece of legislation gets similar treatment.

    I assume a Republican president will get the same obstrucution. The US Senate has not only broken itself, it’s now broken the executive and judiciary branches as well.

    When and how will it change? I don’t know. I can’t believe these rules persisted into the 112th congress.

    I think the best and simplest rule changes would be to keep 60 vote cloture but revert to regular session if there is nobody holding the floor. If a Senator wants to filibuster make him filibuster. The problem now is that obstruction is the default. If Orin Hatch wants to block a nomination all he has to do is not vote to allow them to vote on it. That threshold is way, way too low.

    If Orin really wants to hold the floor and talk for 5 hours about the evils of Caitlin Halligan and how she should never be a federal judge, then he should be able to do that. And when he and his colleagues are done they should vote.

    If a filibuster required any kind of real conviction or sacrifice on the part of a senator it would happen much less often.

  3. I think we are headed for a nuclear option on just about everything.

    And whatever you say about positive aspects of filibusters, they simply don't work if they become routine business, which means that they are not long for this world. One party or the other is going to reach the breaking point with something that they feel has to get through, and they will eliminate the filibuster. The other party will scream and holler, but the precedent will be set.

  4. Dilan,

    Yeah, that's pretty much my view of it. There's a chance that they'll wind up finding rules to retain the influence of individual Senators, and that's what I'd like, but the most likely outcome IMO is probably that it becomes House-like.

  5. Assuming the filibuster is drastically weakened or eliminated in the near future, wouldn't one of the advantages of that be that the majority party would be able to/forced to 1) enact its agenda, and 2) defend its agenda?

  6. Massspeal,

    I hope it happens and I hope that's the result. It seems like there is a lot of posturing that happens now because everyone knows the bills they pass aren't going anywhere (Ryan Plan?).

    Of course, there will still be divided governments. But, when one party is elected to the presidency and controls both houses, then it should be able enact it's agenda. And be held accountable for the results.


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