Sen. Paul’s Filibuster Highlights Sham Filibuster used to Kill Halligan Nomination

March 7, 2013

by Jeremy Leaming

Sen. Rand Paul, (R-K.Y.) may be a strident, sometimes over-the-top Tea Party supporter and fervent antigovernment advocate, but his filibuster of President Obama’s pick to head the C.I.A. was principled. He did so by actually taking to the Senate floor to explain, albeit in very long fashion, his opposition to the administration’s nominee C.I.A. John Brennan, who was confirmed today for the position.

Paul’s action was far different than the Republican obstructionists’ baseless and practically silent filibuster of Caitlin Halligan to a seat on the U.S. Court of Appeals for the District of Columbia Circuit. As Greg Sargent writes in The Plum Line, “Paul’s filibuster was born out of concern about an actual issue – objections to Obama’s approach to drone warfare that are shared on both sides of the aisle.” [See below for more commentary on the Obama administration’s secretive use of drones]

Halligan, however, was blocked by senators who on the whole probably spoke less than two hours about Halligan. And their objections were incredibly lame. She’s received the ABA’s highest ranking for qualification and exceedingly strong support in the legal community, both conservatives and progressives.

Republican senators have been obstructing the judicial nominations process ever since Obama first took office. The president was not able to appoint a judge to the D.C. Circuit during his first term because of Republicans’ obstinacy. There is simply a great desire among the Senate Republicans to keep as many vacancies open, especially on the powerful D.C. Circuit, for as long as possible. These obstructionists are beholden to a base that coddles the superrich and riles up a shrinking group, albeit loud and still influential, obsessed with keeping the courts packed with right-wing ideologues. Too many of those right-wing jurists help support state efforts to abolish abortion and make life much more difficult for those in the LGBT community and undocumented persons.

The sham filibuster, which is the preferred tool of the Senate’s obstructionists, has become the norm. It has been used to halt consideration of policy such as efforts to confront climate change or address immigration reform; but it has most often been used to delay or kill executive branch or judicial branch nominations. Indeed, thanks to the sham filibuster, the Republicans have helped create more than 80 vacancies on the federal bench. In fact vacancies have hovered at 80 or above for much of Obama’s term. The Senate Republicans’ assault on the federal bench, serves their political purposes, but harms the judiciary and Americans who rely on the courts to uphold constitutional rights and seek redress of grievances. A federal bench burdened with fewer judges and larger caseloads is no way for the judiciary to function.


Sen. Paul’s filibuster, however, was no sham. He took to the floor and talked for 13 hours speaking passionately about the Obama administration’s secretive use of Reaper and Predator drones to kill suspected terrorists and too frequently civilians right along with them in Pakistan and elsewhere.

“To be bombed in your sleep? There’s nothing American about that,” said Paul from the Senate floor. “There’s nothing constitutional about that.”

The senator also tore into the president’s opaque responses to using drones to kill suspected terrorists overseas, even Americans. He also noted the president’s unwillingness to release the full Office of Legal Counsel documents on the use of drones and a kill list.

In early February, NBC released a leaked OLC document that apparently summarized all the documents on the drone war. It was widely panned, primarily for its shoddy conclusions and poor use of the English language. In part the white paper said the president can order the killing of a U.S. citizen integral to or associated with Al-Qaeda abroad if the person poses an “imminent threat of violent” attack against the country, the person is unlikely to be captured and that the killing operation would be conducted in accordance with the laws governing war.

That white paper shuns the Constitution’s call for due process in a strained effort to justify secret executive action to kill terrorist suspects.

In a recent post for The Dish, Andrew Sullivan blasted the president for his refusal to release all the OLC documents on the use of drones.

“This cannot be regarded as somehow as state secret,” Sullivan wrote. “It divulges no plans; it just explains to American citizens the criteria by which their own president can kill them from the sky without any due process. If the torture memos could be released by this administration, as they were, so can these. And not just to some Congressional Committee – to all of us.”

As Sullivan noted, Obama came into office promising greater transparency and he’s not delivering.

The drone war, as noted by many, has been shrouded in secrecy for far too long. Sen. Paul’s filibuster was an effort to bring attention to a policy that deserves far more of it.  

The Senate obstructionists who blocked the nomination of Halligan were cowardly, lazy and bitterly partisan. Those obstructionists could not take to the Senate floor for too long, because many likely knew they would have great difficulty explaining publicly why they were blocking a highly qualified nominee to a seat on a federal appeals court bench that needs judges.

Maybe it’s time for the Senate leadership to reconsider the filibuster reform proposals long championed by Sens. Tom Udall (D-N.M.) and Jeff Merkley (D-Ore.).