Reid, Obama Escalate Push to Overcome Filibusters of Appeals Court Nominees

By Nicole Flatow

The Senate confirmed Andrew Hurwitz on Tuesday to fill a judicial emergency seat on the U.S. Court of Appeals for the Ninth Circuit. The confirmation will deliver some welcome relief to the overworked Ninth Circuit, which has more than twice the caseload of the next-busiest circuit.

But to even reach today’s vote on Hurwitz, Senate Majority Leader Harry Reid was forced to file a motion to invoke cloture, a once-extraordinary measure to which Reid has had to resort 28 times to push through long-pending Obama judicial nominees.

Just last month, Reid resorted to a cloture motion to push through another Ninth Circuit nominee with broad bipartisan support, Paul Watford. And over the past few months, he has escalated his effort to overcome record obstruction of judicial nominees, and curb the persistent judicial vacancy crisis on the federal courts. Even more extraordinary is that 25 of these 28 nominees were confirmed after motions to invoke cloture and months of delay, many with near-unanimous support. 

One nominee who did not survive a motion to invoke cloture was Caitlin Halligan [pictured], nominated to the influential U.S. Court of Appeals for the D.C. Circuit. The Senate’s filibuster of Halligan, a former New York State solicitor general with broad bipartisan support, prompted outrage from President Obama and many legal leaders. Obama lamented at the time that the Senate’s vote “dramatically lowers the bar used to justify a filibuster.”

Because some Republican senators blocked an up-or-down vote on Halligan in December, her nomination was sent back to President Obama at the end of the last session of Congress.

In a strong statement backing his nominees this week, President Obama sent Halligan right back to the Senate, re-nominating her to the D.C. appeals court, along with Sri Srinivasan, the principal deputy solicitor general at the Department of Justice.

"This important court is often called the nation's second-highest court, and it stands more than a quarter vacant," Obama said. "I remain deeply disappointed that a minority of the United States Senate blocked Ms. Halligan's nomination last year and urge her reconsideration, especially given her broad bipartisan support from the legal and law enforcement communities."

A recent report from the Congressional Research Service reiterates that Obama is the only president in the past few decades who has more federal court seats vacant as he begins his election year than he did when he took office. 

To learn more about the judicial vacancy crisis and follow developments, visit JudicialNominations.org, and click here to get involved with the ACS Judicial Nominations Issue Group. And check out this chart on the 25 nominees who were confirmed after a motion to invoke cloture.