Senate ‘Lowers the Bar’ for Filibusters with Obstruction of Judicial Nominee Halligan

December 6, 2011

by Nicole Flatow

The Senate voted today to block a confirmation vote on Caitlin Halligan to the U.S. Court of Appeals for the D.C. Circuit, prompting a sharp rebuke from President Obama and outrage from a host of legal leaders and commentators.

“Today’s vote dramatically lowers the bar used to justify a filibuster, which had required ‘extraordinary circumstances.’  The only extraordinary things about Ms. Halligan are her qualifications and her intellect,” said President Obama following the vote.

“Those senators who voted against cloture are ushering in an unfortunate era of unprecedented obstructionism,” said American Constitution Society President Caroline Fredrickson.

The Senate voted 54-45 on Senate Majority Leader Harry Reid’s motion to invoke cloture, falling six votes short of the 60 needed to force an up-or-down vote on Halligan’s nomination. 

In 2005, a group of senators known as the “Gang of 14” determined that all judicial nominees should receive an up-or-down vote absent “extraordinary circumstances.”

As Senator Lindsey Graham explained the agreement at the time, “ideological attacks are not an ‘extraordinary circumstance.’ To me, it would have to be a character problem, an ethics problem, some allegation about the qualifications of a person, not an ideological bent.”

But today, Graham voted against holding an up-or-down vote on Halligan’s confirmation, even though she had been unanimously rated well qualified by the American Bar Association, and had the broad support of law enforcement officials in New York State, where she served as solicitor general.

Graham and the three other Republican members of the “Gang of 14” who remain in the Senate, -- Sens. John McCain, Susan Collins and Olympia Snowe -- also voted to filibuster Goodwin Liu, another nominee whose credentials were widely praised as "sterling" and who had the support of legal leaders from across the ideological spectrum.

In a recent ACS Issue Brief, “Extraordinary Circumstances: The Gang of 14 and a Proposal for Judicial Nominations Reform," law professors Richard Painter and Michael Gerhardt explain senators' betrayal of their 2005 agreement:

The Gang of 14 had hoped that their bipartisan compromise would facilitate judicial appointments and remove ideological differences as a ground of objection to a nomination as long as the nominee’s views were within the mainstream of American jurisprudence and he or she had sound character and no serious ethical lapses. 

Instead, judicial filibusters, among other means of obstruction within the Senate, have been persistently directed at judicial nominees on the basis of speculation and distortion.  These tactics have prevented the federal judiciary from operating at full strength, and have made the process of judicial selection unpredictable for everyone concerned, including the White House, the Senate, and the nominees.

Painter, who served as President George W. Bush’s chief ethics lawyer, renewed his call for immediate reform to the judicial nominations process today, writing for Legal Ethics Forum, “The Senate has once again brought discredit upon itself … not by failing to confirm a nominee, but by refusing to vote on a nominee.”

Georgetown Law Professor Peter Edelman, the newly elected ACS Board Chair, called today a “sad day for the course of justice in our country.”

 “I have known Caitlin Halligan for 20 years,” he said. “She is a brilliant, decent, totally fair-minded moderate person. Yet despite her sterling credentials and the highest possible rating from the American Bar Association, some senators opposed even holding an up-or-down vote on her nomination. Many of those same senators, just a few years ago, decried the use of the filibuster for judicial nominations absent ‘extraordinary circumstances.’ Their action today on this nominee clearly belies that argument and makes a mockery of the entire confirmation process.”

For more information about judicial nominations, visit JudicialNominations.org and read Painter and Gerhardt’s proposal here.