Judicial filibuster: Not so 'extraordinary' after all

Remember the "Gang of 14"? That was the bipartisan group of senators who six years ago agreed not to filibuster judicial nominees except under "extraordinary circumstances."

Well, looks like some people have decided to redefine "extraordinary" to include "politically convenient."

Surely that's the only way to explain Tuesday's filibuster of Caitlin Halligan, who was nominated to the U.S. Court of Appeals for the District of Columbia Circuit. The insufficient 54 to 45 vote end cut off debate included a yea from just one Republican, Sen. Lisa Murkowski of Alaska.

Opponents like Sen. Charles Grassley, an Iowa Republican, argued that her views are extreme, in part, because she represented New York State in a lawsuit against gun manufacturers and because she once served on a panel critical of the Bush administration's detainee policies. But if such views are considered extraordinary, that's news to the huge swath of the country that endorses reasonable limits on gun rights and opposes torture of suspects.

Make no mistake, Ms. Halligan is not some far-left judicial activist. She even gave a lengthy endorsement of the Second Amendment during her confirmation hearing. This is a woman who clerked at the Supreme Court and served as New York's solicitor general. Her fellow lawyers rated her as highly qualified for the appeals court.

She is not the first Obama nominee to the court to be blocked by Republican senators on flimsy arguments. Goodwin Liu, a ninth circuit appeals court nominee, was similarly filibustered by the Senate last May. But at least in that case, one can say Mr. Liu, a former University of California Berkeley law professor, was an outspoken liberal who ran afoul of Senate Republicans, in part, by withholding documents. That shouldn't have disqualified him, but at least there was something more substantial opponents could hang their hats on.

That's hardly the case with Ms. Halligan who seems to have lost favor simply because the D.C. circuit is considered just one step away from a Supreme Court nomination. No wonder Senate Judiciary Chairman Patrick Leahy, a Vermont Democrat, called the attacks against the nominee "concocted controversies and a blatant misreading" of her record.

Four Republicans on the Gang of 14 still serve in the Senate, but all — John McCain, Lindsey Graham, Susan Collins and Olympia Snowe — voted against bringing the nomination to a vote. This would seem to spell an end to the Gang of 14 and any effort to restrain attacks on qualified judicial nominees on purely partisan grounds.

If so, that could signal a huge problem for the judiciary and for whomever is elected president next year. It was the intervention of the Gang of 14 that allowed President George W. Bush to win approval for many of his nominees in his second term, including Supreme Court Chief Justice John Roberts when Democrats were in a minority in the Senate. Otherwise, Republican leaders had threatened the "nuclear" option of banning filibusters for judicial nominees.

Sen. Charles Schumer, a New York Democrat, signaled as much when he warned that a filibuster against Ms. Halligan amounted to a violation of the group's agreement that would have "lasting consequences."

On the other hand, it probably does not hurt Mr. Obama's re-election prospects. After the vote, the president characterized the filibuster as another example of Republican obstructionism "that puts party ahead of country" and noted how 20 other judicial nominees are currently being blocked by GOP senators.

While next year's election won't be decided on an appeals court nomination, the outcome does reinforce the view that the GOP is unwilling to compromise on a host of important decisions facing the country, including the extension of the payroll tax cut that is set to expire shortly. This kind of hyper-partisanship is of great concern to voters, particularly the independent voters in swing states that Mr. Obama so desperately needs.

Meanwhile, Republicans have drawn a line in the sand, at least when it comes to a seat on the Court of Appeals. Should the Republicans take back the White House in 2012, the Democrats will have little choice but to reciprocate with this new interpretation of "extraordinary circumstances." That will result in an increasingly short-staffed judiciary that lacks the services of highly qualified individuals who had the misfortune of ever having an opinion, or even an appearance of one.

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