Gang of 14, RIP

The Senate yesterday defeated by filibuster a key judicial nomination, Caitlin Halligan, named for the DC Circuit. All 53 Democrats and Republican Lisa Murkowski voted for cloture; 45 Republicans voted no, and Orrin Hatch voted “present”, which is functionally equivalent to voting no in this context (in which 60 yes votes are needed).

As Felicia Sonmez notes, all four remaining “Gang of 14” Republicans voted against cloture, as they did in the case of Goodwin Liu. The deal back then was that the 14 wouldn’t support a filibuster except in undefined, or self-defined, “extraordinary circumstances.” However, it’s been clear that the agreement was a dead letter since about January 20, 2009, although it didn’t matter a lot in the 110th Congress, when 60 votes for cloture were relatively easy to come by — although even then, GOP filibusters slowed down many nominations, even though they only had the power to chew up Senate time and not to ultimately defeat them. And while only two nominations have been defeated by filibuster so far, Republicans continue to insist on 60 votes for every nomination (and therefore are filibustering every single nomination), and have bottled up quite a few others that Harry Reid isn’t bringing to the floor because they may not have the votes needed to break the filibuster.

In other words, we’re moving more and more rapidly towards a system in which appellate judges cannot be confirmed except in the rare case of a president happening to have a very large party majority in the Senate, something that happens rarely.

In my view, that’s simply not stable; most likely sooner rather than later, the Senate will go nuclear and eliminate the 60 vote requirement for cloture on judicial nominees. In my view, that’s too bad. I would love a real “extraordinary circumstances” standard, in which the out-party filibustered rarely, but used that power, using it instead to negotiate with the president for non-extreme judges. But that’s not what’s happening now; more or less every nomination is filibustered by at least a small group of Republicans, and most nominations are filibustered by most of the Republicans. As far as I can tell, there was nothing particularly unusual about Halligan; Republicans opposed her because they don’t want a mainstream liberal on the DC Circuit, end of story.

Of course, we would know more about this if Barack Obama was nominating judges more quickly and Harry Reid was bringing them to the floor and forcing votes more quickly. So far, I believe that eight circuit court nominees have been confirmed this year, and two defeated by filibuster. There are four more circuit court nominees approved by committee and waiting floor action. In my view, Reid should bring them all up…might as well do a rolling vote, all four in a row. That, presumably, would make it very clear that for most Senate Republicans, what counts as “extraordinary circumstances” is “nominated by a Democrat.”

[Cross-posted at A plain blog about politics]

Jonathan Bernstein

Jonathan Bernstein is a political scientist who writes about American politics, especially the presidency, Congress, parties, and elections.