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Wednesday, March 06, 2013

Two current items on the filibuster

Two events have the filibuster, and conversations about filibuster reform, back in the news today. First, Republicans are (silently, of course) filibustering President Obama's nominee to the D.C. Circuit, apparently because she litigated cases that Republicans don't like (specifically against gun manufacturers), which disqualifies her from being a judge. Anyone who did not see this coming after the Democratic capitulation (again!) on filibuster reform is not paying attention. The fact that Carl Levin (as quoted in the linked piece) believed that anything would change shows how much is wrong with the Senate and with the Democratic Party.

Second, Rand Paul (supported by Mike Lee and Ted Cruz) is staging a talking filibuster of the nomination of John Brennan as Director of the CIA. This at least gives some reform advocates some of what they want--the end to silent filibusters and forcing Republicans to take and hold the floor (and the heat) for their delay efforts. Paul has been at it since 11:45 a.m. EST, so just over four hours now. Stay tuned. [Update: Still going as of 11:15 p.m.--coming up on 12 hours. Here is another piece reflecting the "this is the way filibusters ought to be" view]

Further update: It ended around 12:30, after 12 hours and 52--as everyone, incluindg Paul will note, a little more than halfway to Strom Thurmond's record filibuter. This does appear to have been effective at calling attention to the issues Paul wanted to highlight. The press found it entertaining, as did some of the public that pays attention to any of this. But a big part of that might just be the novelty of the talking filibuster. And if the minority had to do this every single time they opposed a court of appeals nominee, the novelty would wear off, particularly for the public and particularly if other business is not getting done. I previously have thought that the mandatory return of the talking filibuster--one of the filibuster-reform proposals that's been made--would be ineffective, actually creating more of a burden on the majority. But perhaps it would be a way to get rid of the routine filibuster (which really is the problem) without having to drastically rewrite Senate rules about what is and isn't a proper filibuster target.

Posted by Howard Wasserman on March 6, 2013 at 03:50 PM in Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink

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Comments

To think that Senators of one party would refuse to allow the full Senate to cast an up or down vote on someone to serve as Judge on a federal court because they disagreed with the nominee's views. Where could those Republicans have gotten the idea from? Hmmm. As I recall, the Democrats did the same thing - procedural device aside - when the last Republican president in office nominated people who he thought were qualified for the bench.

Right or wrong, agree or disagree. Carl Levin and the rest of the Democratic party in the U.S. Senate should not be surprised that Republicans would do this since the Democrats have conceded the appropriateness of this behavior.

Posted by: Adam | Mar 7, 2013 12:00:46 AM

I don't recall Dems using the filibuster quite the same way, e.g., asking the President to nominate a judge, the President nominates the judge, and the person is filibustered for let's say a year. Or, filibustering nominees so uncontroversial they are (repeatedly) confirmed by 80 or more votes. This "you did it too stuff" at some point doesn't quite work.

Goodwin Liu was like Estrada. The filibuster of Caitlan Halligan or any number of others (such as Victoria Nourse, a perfectly average academic type supported by the likes of David Bernstein), not so much.

At some point, however, we need to get past a blame game. If you want to tar both parties with the same brush fine. Levin (wrongly imho) opposed a sensible limited filibuster reform too. It's time to set forth a new tradition here, where the "extraordinary circumstances" rule really means that.

Posted by: Joe | Mar 8, 2013 12:02:11 AM

Democrats asked that Bush nominate Glenn Conrad to the Fourth Circuit to fill a seat formerly held by H. Emory Widener. Leahy promised a quick confirmation if he should be nominated. Once Bush nominated him, no action was taken.

Halligan was like Peter Keisler whom Democrats also refused to process for over 2 years (indeed this is the very seat Halligan is being nominated).

Debra Livingston (confirmed 91-0) had to wait for a year before confirmation despite having the support of Chuck Schumer. Jim Rogan was recommended by the Feinsten/Boxer selection committee, but Boxer ultimately refused to support him and his nomination died.

So GOP is doing nothing new or different here.

Posted by: DrGrishka | Mar 8, 2013 2:44:06 PM

Paul Keisler was a co-founder of the Federalist Society. Wikipedia lists this as but ONE reason for the filibuster. I'm not sure how Halligan was "like" him, exactly. Was she the co-founder of the ACLU or something?

Debra Livingston confirmed within a year of nomination. Relatively speaking, that's pretty quick, given how long things are dragged out on a consistent basis thee days. Rogan was involved in the Clinton impeachment. What is the reason for some of the blocks these days? We repeatedly don't know.

But, again, if we want to just take the "everyone does it" take, fine. At some point, the delays get to be too much, including involving "judicial emergency" slots. At some point, enough is enough & such reform has to be made.

Posted by: Joe | Mar 8, 2013 7:07:54 PM

I am not sure why being a co-founder of the Federalist Society is a disqualifier or any more of a disqualifier than filing briefs taking a "liberal" position. Basically, Keisler was opposed because he is a conservative and Halligan is opposed because she is a liberal. I fail to see a distinction.

Livingston was dragged out for a year for no reason whatsoever. Indeed, she was not even given a hearing during the same Congress in which she was nominated. She was dragged out simply for reasons of delay.

Yes, Rogan was an impeachment manager. Just like some of Obama nominees also engaged in liberal politics. More importantly, though, Rogan initially had bipartisan support, including that of the local selection committee convened by California Senators.

I don't disagree that reforms have to be made. But reforms will never be made unilateraly.

But much of this can be resolved. Obama can do what Bush did to forge some compromise. Bush renominated Clinton nominees Roger Gregory and Helene White. The first didn't do him much good as Democrats blocked 7 separate nominees to the Fourth Circuit, but the renomination of Helene White did allow Bush to get a conservative Circuit and conservative District nominee to get confirmed. Obama can do the same. He can renominate for example Keisler or Estrada and have them confirmed as a package deal with Halligan.

Posted by: DrGrishka | Mar 8, 2013 9:57:27 PM

I am not sure why being a co-founder of the Federalist Society is a disqualifier or any more of a disqualifier than filing briefs taking a "liberal" position. Basically, Keisler was opposed because he is a conservative and Halligan is opposed because she is a liberal. I fail to see a distinction.

Livingston was dragged out for a year for no reason whatsoever. Indeed, she was not even given a hearing during the same Congress in which she was nominated. She was dragged out simply for reasons of delay.

Yes, Rogan was an impeachment manager. Just like some of Obama nominees also engaged in liberal politics. More importantly, though, Rogan initially had bipartisan support, including that of the local selection committee convened by California Senators.

I don't disagree that reforms have to be made. But reforms will never be made unilateraly.

But much of this can be resolved. Obama can do what Bush did to forge some compromise. Bush renominated Clinton nominees Roger Gregory and Helene White. The first didn't do him much good as Democrats blocked 7 separate nominees to the Fourth Circuit, but the renomination of Helene White did allow Bush to get a conservative Circuit and conservative District nominee to get confirmed. Obama can do the same. He can renominate for example Keisler or Estrada and have them confirmed as a package deal with Halligan.

Posted by: DrGrishka | Mar 8, 2013 9:57:31 PM

In the comments to a post about the filibuster, isn't it worth distinguishing between judicial nominees actually blocked by the filibuster, and judicial nominees that are blocked by the Senate majority?

Posted by: JHW | Mar 9, 2013 7:28:11 AM

Obama 'forged some compromise' ... Republicans blocked even people they recommended. That line gets a tad old after awhile. It's yet again up to "Obama," even though (like Carter and Clinton), he has spent less time trying to put his ideological picks on the bench. Some on the left even are upset about him for not being more of a hard-liner. If Republicans show any sign of compromise, as he repeatedly has done on budget matters etc., I'm sure he would welcome it on this issue too.

Many "conservatives" were confirmed, so, no, Paul Keisler was not "basically" blocked because of that. Goodwin Liu, e.g., was an understandable block, and is comparable to Estrada. Keisler was a co-founder of the Federalist Society -- the major conservative legal ideological group. He clerked for Bork. He defended some controversial 'war on terror' policies under Bush. And, he was seen as a possible ultimate SC pick. He was not just "basically" a conservative.

An IMPEACHMENT MANAGER, sorry for "shouting," is not the same thing as being a "liberal." Seriously?

I didn't say Democrats weren't involved in ideological battles here, so pointing out examples is not very impressive. The concern is a matter of degree and vacancies. "A year" simply is not long these days to confirm judges. Normally, it would take a good part of a year. She was nominated in June in a key election year and it is not surprising she was not confirmed then. She was renominated in January and confirmed in early May. A reasonable schedule these days. You overstate your case yet again. This leads me to believe there was some reason Livington in particular was targeted.

Many of Bush's top conservative ideological picks were confirmed -- Kavanaugh etc. Roger Gregory (the first black to the 4th Cir.) was part of an extended filibuster against Clinton picks for a slot in the circuit. How exactly is renominating Estrada -- whose slot was eventually given to a conservative anyhow -- from years back quite comparable? If Estrada was in a package deal for a Liu, maybe.

Since impeachment managers and co-founders of the Federalist Society who are key defenders of controversial presidential war policies are merely labeled 'conservatives,' again, it does seem pointless -- even when one's correct -- to try to determine differences. We will just get, often false, "both sides do it" stuff. Fine. We need to move on from here. Since the President repeatedly has compromised, has worked with Republicans for nominations (some of whom were still blocked) and hasn't made ideological nominations a primary concern, the room for going forward is there, if the other side shows any gumption.

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I don't understand JHW's point. How would "the Senate majority" block them?

Posted by: Joe | Mar 9, 2013 9:33:23 AM

And Carolyn Kuhl was filibustered because...? Paul Diamond who was supported by both Specter and Casey was never given a vote or even a committee hearing. Rod Rosenstein was blocked because in the words of Maryland Senators he was "too good" of a US Attorney and MD couldn't afford to lose that. (Speaking of "extended filibuster of nominees, 7 separate nominees to the 4th Circuit were blocked). Mary Donohue, a former Lt. Gov. of NY recommended for a DCt judgeship by Chuck Schumer was never given vote.

While we are at in, John Roberts' own nomination to the DC Circuit was stalled for 2 years (aside from the fact that he was initially nominated by Bush 41 and never given a vote).

So the idea that GOP, which has explicitly filibustered just 2 nominees (compared to 10 by Democrats, leaving aside killing nominees in committee) has somehow escalated the war is just not supported by history.

Posted by: DrGrishka | Mar 9, 2013 11:01:54 AM

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