News The Caucus: Democrats Cry Foul Over Wednesday’s Other Filibuster

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The Caucus: Democrats Cry Foul Over Wednesday's Other Filibuster
Mar 8th 2013, 11:17

Senator Rand Paul may have staged a Senate-shaking filibuster Wednesday, but his was actually only the second most significant Republican filibuster of the day.

In a vote just before Mr. Paul,  the junior senator from Kentucky, tried to blockade the nomination of John Brennan as director of central intelligence over drone policy, the Senate failed to end debate on the nomination of Caitlin J. Halligan of New York to a seat on the federal appeals court for the District of Columbia.

The filibuster of Ms. Halligan didn't blow up on Twitter the way Mr. Paul's impressive 12-hour stand did. But of the two, it was the one that could renew a feud over rules governing filibusters and how the Senate handles high-level judicial nominations — an issue that has torn the chamber for years.

Democrats are already in discussions on how to respond to the Halligan filibuster. They believe Republicans are dead set against confirming qualified Obama administration nominees to the United States Court of Appeals for the District of Columbia Circuit. They accuse Republicans of exaggerating their objections to Ms. Halligan to justify a filibuster under a 2005 agreement that short-circuited the last partisan showdown over filling judicial vacancies.

That deal, crafted by the famous Gang of 14, put its signatories on record as saying they would not block confirmation votes on appeals court judges without "extraordinary circumstances" as determined by each individual. While only members of the gang signed it, it became informal Senate policy and defused a crisis that had Republicans threatening to execute the "nuclear option" and bar filibusters against judicial nominees by a simple majority vote instead of with the 67 votes historically needed to change Senate rules.

It also led to President George W. Bush winning three appointments to the appeals court often considered a feeder to the Supreme Court, giving conservatives an advantage on the influential panel, which hears many federal-powers cases. It its current makeup, the court consists of four judges appointed by Republican presidents and three appointed by President Bill Clinton, with four vacancies — the most ever on that court.

In filibustering Ms. Halligan, several Republicans cited extraordinary circumstances arising from her earlier work as the solicitor general for the State of New York, particularly on a case against gun manufacturers.

"Ms. Halligan advanced the novel legal theory that gun manufacturers, wholesalers and retailers contributed to a 'public nuisance' of illegal handguns in the state," said Senator Charles E. Grassley of Iowa, the top Republican on the Judiciary Committee, accusing her of judicial activism. "Therefore, she argued, gun manufacturers should be liable for the criminal conduct of third parties."

Democrats cried foul. The real reason she was blocked, they say, is that Republicans do not want to see the balance of power on the D.C. appeals court shifted. They say that Ms. Halligan was acting in her official capacity representing the State of New York, not as a jurist, and that Republicans have abandoned the extraordinary circumstances test engineered by the Gang of 14.

"If you go back to that history of what occurred back then, there is a real question of whether they have broken the deal now," said Senator Tom Udall, Democrat of New Mexico. "This is a key circuit for the country. What they are doing is not allowing these consensus candidate judges to get votes."

Mr. Udall has been among a group of relatively newer members of the Senate clamoring for significant changes in the rules governing filibusters. One demand is that senators act more like Mr. Paul, and take the floor to make their case when they are trying to block a vote.  In January, working to avoid a divisive fight, Senator Harry Reid, the Nevada Democrat and majority leader, and Senator Mitch McConnell of Kentucky, the Republican leader, struck a deal making some modest changes in filibuster rules.

But those changes have done little so far this session to curb filibusters, as evidenced by the vote on Ms. Halligan and the politically charged obstacles raised to confirmation votes on Mr. Brennan and Chuck Hagel, a former Republican senator who found himself on the receiving end of a Republican filibuster before winning confirmation as secretary of defense. The filibuster is alive and well in the Senate and, as Mr. Paul showed, may even be enjoying resurgence as grand theater.

Democrats say that despite what they see as clear provocation, they are in no hurry to change the new rules after just two months in place. They say they are more inclined to explore new ways to confront Republicans over the vacancies.

Mr. Udall says one option might be for the president to make multiple nominations, in effect daring Republicans to find ways to cite extraordinary circumstances in multiple instances.

"Rather than putting just one up, we should put before the Senate all four and expose what is happening here," said Mr. Udall, who acknowledged that Senate Democrats would need White House cooperation.

"We need to design a strategy to counter the Republicans, and we are going to need the president," he said.

The fight will take time to unfold. Democrats say they will wait to see how Republicans respond to future appeals court nominees. But a series of filibusters against what they view as acceptable nominees could quickly bring to a head the push for a change in Senate rules.


Follow Carl Hulse on Twitter at @hillhulse.

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