Wednesday, March 6, 2013

Filibusters and Judges

The Senate this morning 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, I think 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.

11 comments:

  1. I think we might see Beneath the Cranky Bloggger return today, as reporters are now writing that Rand Paul is filibustering Brennan. What makes it a filibuster? He's talking!!!!!

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    1. The one that really tempted me wasn't that; it was reporters saying that this was the second time Republicans filibustered Halligan, as if it were two separate incidents and not one continuing, months-long effort.

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  2. We're not there yet, but we SHOULD be. When there was a scrap of sanity in the opposition party, I think the "protect the rights of a fervent minority" idea made sense. But in the face of a scorched-earth 100% political opposition, it is a luxury we can't afford.

    Look, people keep talking as if rules changes are permanent. I think it is perfectly OK to change the rules toward a 51-vote rule at this time. If, in the future, there is some return to opposition parties that feel a sense of duty to govern, then perhaps it would be sensible to return to a supermajority system.

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    1. I think there's no chance that a simple-majority Senate would change back in the foreseeable future.

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  3. Thank you David. The Republicans have effectively changed the rules without changing the letter of the law. They have been trying to stuff the judiciary with shills since Bush I and Clinton, and D's have yet to seriously even face the fact, let alone fight back.

    I do understand that our good host and I have very different professional backgrounds and very different temperaments. He may be proved totally correct on all points in the fullness of time. (I think we're more likely to all die of heat stroke and crop failure before Republicans can learn to govern sensibly.)

    But if I may be forgiven a temperamental anecdote, when I read Voltaire some decades ago and Dr. Pangloss always pointed out how every human situation was just as perfect as it could be in its existing form, my impression was that Dr. Pangloss was being severely criticized by Voltaire's satire.

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  4. "So maybe this is part of a roadblock, and maybe it isn't."

    Walks like a duck . . .

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    1. Response to both...

      Look, all we have is a single nominee filibustered successfully. Two other circuit court nominees passed. It's certainly true that Republicans have established an across-the-board 60 vote standard (thus, yes, changing the rules), and that they are staging united (or close) partisan filibusters against a lot of judicial nominations. And they absolutely roadblocked all nominations last year going into the election. But that's not the same thing as roadblocking the DC Circuit right now.

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  5. I don't see any reason that sub- Supreme Court nominations should be filibustered. There are enough of them that it's going to balance out -- if D's get all their nominees though, and R's get all their nominees through, so what? You're talking about dozens, hundreds of judges. I can see the argument for allowing "intsense, large, minorities" to have some say on Supreme Court nominations, because there you're talking about 9 people who serve for decades and can't be overruled. But at any other level, it's just a waste of everyone's time, not to mention an affront to democracy.

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  6. Maybe I'm confused, (haven't kept up on all the news the past couple of days) but I thought that this filibuster was unrelated to the judge, but due to concerns about Benghazi and Drones???

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  7. Okay, it's only one judge. But it's also one DoD Secretary and one CIA Director and possibly more nominations of which I'm unaware just since the so-called "deal" Reid and McConnell hashed out.

    It's a horrible pun, but Harry Reid has proven to be a very weak reed in managing the Senate, as far as I can tell.

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  8. Could it be that the Republicans have targeted the DC circuit in particular because of the kind of issues that it covers and the number of Supreme Court justices that it has produced?

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