Judges Are (Nearly) Forever

The (silent) filibustering of Caitlin Halligan’s nomination to the D.C. Circuit is getting attention mainly because of its very different style than Rand Paul’s showy “talking filibuster” of John Brennan’s confirmation. It also had a different effect. For his thirteen hours on the floor Paul secured a letter from the Attorney General disavowing any legal claim the president could order the killing of a non-combatant American citizen on American soil without due process–something the administration had never advanced in the first place. Paul also succeeded in making himself a big conservative celebrity and a viable (or at least non-dismissable) presidential candidate for 2016. The filibustering of Halligan has probably succeeded in killing her nomination.

If you are an especially civil liberties-minded person, perhaps Paul’s filibuster remains a much bigger deal, even though its ostensible target was confirmed. But the Halligan filibuster is part of a larger pattern which is in danger of leaving Barack Obama with a significant lighter footprint on the federal judiciary than his two terms in office would be expected to merit. At New Yorker, Jeffrey Toobin has the story:

[S]enatorial entropy has taken an enormous toll on President Obama’s judicial appointments. This was the second time that Halligan received majority support, but, because she never passed the threshold of sixty, her nomination now appears doomed. And so, in the fifth year of his Presidency, Obama has failed to place even a single judge on the D.C. Circuit, considered the second most important court in the nation, as it deals with cases of national importance….

Judicial appointments represent one of the great missed opportunities of the Obama Presidency. In his first term, especially in the first two years, Obama himself bore much of the blame for this. When Democrats controlled sixty Senate seats, Obama was slow to nominate lower-court judges, and his moment of greatest leverage passed. But, since the 2010 midterm elections, Republicans have been at fault, almost entirely. Most nominees are not formally stopped, as Halligan was, but rather are delayed and delayed. Bush’s nominees got votes within weeks; Obama’s take months, even for uncontroversial selections. William Kayatta, Jr., nominated to the First Circuit, waited three hundred days for a vote and then received eighty-eight votes for confirmation. Republicans delay because they can. “The Republican Senators are not punished for it, and they are rewarded by their base,” a senior administration official said.

While Toobin is obviously peeved at the squandering of Obama’s opportunity to get judicial nominees confirmed back when Democrats had 60 (or later 59) votes in the Senate, he concedes there is not a great deal the president can do about the problem now, absent significant filibuster reform.

There’s a broader issue that Toobin doesn’t discuss in his post on Calligan, but that I’m sure he understands well as someone who has written a great deal about the rise of the conservative legal movement: these days conservatives are a lot more focused on judicial appointments than the progressives who in the recent past came to think of the judiciary as an ally, perhaps forgetting the ancient Anglo-American history of judges as a bulwark for privilege. Now that conservative judges (at least at the top of the judicial pyramid) have lost most of their inhibitions about overturning precedents, they provide an exceptional avenue for the achievement and consolidation of right-wing policy goals.

For all their occasionally “populist” talk, that’s fine with conservative politicians and activists, who have no inherent objections to living under an oligarchy of nine unelected jurists serving lifetime terms so long as they are supporting the “correct” doctrines. Indeed, that’s sort of the ideal scenario for “constitutional conservatives” who deny that popular majorities have the power to overturn the absolute private property rights, the absolute fetal rights, and other absolutes they believe to be essential permanent features of the Founders’ (if not Almighty God’s) design.

If Republicans succeed any time soon in gaining the presidency and a majority in the Senate, a hypocritical assault on judicial filibusters like the one that very nearly led to the “nuclear option” in 2005 would not at all be surprising. Conservatives understand judicial appointments are especially valuable in no small part because they endure. Progressives need to play catch-up in regaining this understanding, but as Toobin suggests, it may be too late for that realization to bear fruit in this presidency.

Ed Kilgore

Ed Kilgore, a Monthly contributing editor, is a columnist for the Daily Intelligencer, New York magazine’s politics blog, and the managing editor for the Democratic Strategist.