- The Washington Times - Tuesday, December 6, 2011

Senate Republicans on Tuesday filibustered one of President Obama’s appellate court nominees, ending a six-year truce and reigniting one of the bitterest recurring battles on Capitol Hill.

The 54-45 vote, almost entirely along partisan lines, blocked former New York Solicitor-General Caitlin Joan Halligan from getting a seat on the U.S. Circuit Court of Appeals for the District of Columbia and put the final nail in the coffin of the 2005 agreement by the so-called “Gang of 14” that headed off a partisan war over Republican plans to use the “nuclear option” to bar such filibusters altogether.

Tuesday’s vote returns the state of affairs to 2003, when Democrats first legitimized judicial filibusters by blocking President Bush’s nomination of Miguel Estrada to the same appeals court.

“We shouldn’t be putting activists on the bench,” said Senate Minority Leader Mitch McConnell, Kentucky Republican. “We should be putting people on the bench who are committed to an evenhanded interpretation of the law, so everyone who walks into a courtroom knows he or she will have a fair shake. In my view, Ms. Halligan is not such a nominee.”

Ms. Halligan is the second of Mr. Obama’s judicial nominees to be filibustered but the first to fall purely to Republican opposition and the first to be blocked chiefly on the grounds of ideology without any issues of judicial temperament being raised.

Mr. McConnell said that on cases involving gun rights and terrorism, she chose to file legal briefs that ignored previously settled law and to pursue what, in the gun rights case, a New York court called a “legally inappropriate” theory.

Democrats said Ms. Halligan was acting on behalf of clients in those instances, and they noted that she had promised at her confirmation hearing to follow settled law.

Mr. Obama, who joined filibusters against many of Mr. Bush’s judges during his time in the Senate, said he was “deeply disappointed” in Tuesday’s vote.

“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,” Mr. Obama said in a statement.

In Ms. Halligan’s case, Democrats said there are no questions about her ethics or judicial temperament, and her blockade is based entirely on politics.

“A vote against this nominee is a vote that declares the Gang of 14 agreement null and void,” said Sen. Charles E. Schumer of New York, who helped lead many of the Democrats’ filibusters during the Bush administration.

Senate Majority Whip Richard J. Durbin, Illinois Democrat, said Republicans are retaliating against Democrats for filibusters of Mr. Bush’s nominees to the same court. He called it “a dangerous path.”

Democrats began walking down that path in 2003 when they filibustered Mr. Estrada, and they followed that with filibusters of five other judges that year and added another four filibusters in 2004.

In 2005, Republican leaders led a movement to change Senate rules to declare filibusters of judges invalid - a move dubbed the “nuclear option” and averted only when 14 lawmakers from both sides of the aisle got together and pledged to head off filibusters except in “extraordinary circumstances.”

Those 14 senators were enough to swing the balance of power at the time, though not all senators bought into the deal.

Mr. Durbin, Mr. Schumer and Mr. Obama never subscribed to it. In 2005 and 2006, they voted to try to block Janice Rogers Brown and William H. Pryor Jr. as judges and Samuel Anthony Alito Jr. as a Supreme Court justice even after the Gang of 14 declared there were no extraordinary circumstances in those cases warranting a filibuster. All three were confirmed eventually.

This week, though, all three touted the gang’s standard and lamented its breach with Tuesday’s vote.

Meanwhile, Mr. McConnell has embraced a 60-vote threshold for judicial nominees even though he blasted that during the Bush years. Back then, he said the Senate’s role as enshrined in the Constitution’s advice-and-consent clause should be limited to holding an up-or-down majority vote on judicial nominees.

Nearly three years into his term, Mr. Obama is still faring a little better than Mr. Bush at the same point. By the end of 2003, Democrats had successfully filibustered six Bush nominees. Republicans have blocked two of Mr. Obama’s picks.

Republicans first filibustered this year on Goodwin Liu. They said the law professor showed an inappropriate temperament by attacking Justice Alito during the latter’s confirmation hearings.

A week after his nomination was blocked, Mr. Liu withdrew from consideration. This summer, he was confirmed to a seat as a justice on California’s Supreme Court.

Tuesday’s vote broke down almost exclusively along party lines, with only Sen. Lisa Murkowski, Alaska Republican, deviating to vote with Democrats. Sen. Orrin G. Hatch, Utah Republican, voted “present.”

Another of Mr. Obama’s nominees, John McConnell, survived a Republican filibuster attempt in May when 11 Republicans joined with Democrats to allow an up-or-down vote on his nomination. All four of the Republicans on the Gang of 14 still in the chamber voted to let Judge McConnell’s nomination go forward.

All told, nine of the 14 are still in the chamber: in addition to the four Republicans, four Democrats and Sen. Joe Lieberman, who was a Democrat at the time but is now an independent.

Tuesday’s vote marked the first time they split entirely along partisan lines on a judicial filibuster vote.

Sen. Susan Collins, a Maine Republican who was part of the gang, said she still tries to adhere to the principles. In this case, she said, the appeals court for which Ms. Halligan was nominated has such a light workload that it doesn’t need another judge.

“It’s clear to me the size of that court needs to be shrunk,” she said.

Sen. Ben Nelson, a Nebraska Democrat who also was part of the gang, said he doesn’t see their agreement controlling things anymore.

“I don’t know if it’s dead, but the spirit is not alive,” Mr. Nelson said. “It served its purpose. It’s hard to reignite the coals after they’re out.”

Mr. Nelson said he still tries to adhere to the principles of extraordinary circumstances when considering a filibuster. He was the sole Democrat to vote to filibuster Mr. Liu.

“It’s alive with me, but it doesn’t seem to be carrying over from ‘05 to ‘11,” Mr. Nelson said.

• Stephen Dinan can be reached at sdinan@washingtontimes.com.

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