The Filibuster that Matters

The Prospect's Jamelle Bouie makes an important point about Rand Paul's rare Mr. Smith Goes to Washington-style filibuster on Wednesday. Before Paul started speaking to hold up the nomination of John Brennan to head the CIA, the Senate silently continued to filibuster Caitlin Halligan's nomination to the D.C. Circuit Court of Appeals. Paul's filibuster will get more attention, but the filibuster of Halligan is more telling.

The most important difference? The Halligan filibuster will have practical consequences. Brennan was confirmed by a 63-43 vote the day after Paul started his filibuster. The filibuster of Halligan, conversely, continues with no end in sight. Preventing Obama from getting any nominees confirmed to nation's second most important appellate court is a very important win for the Republican Party as well as a defeat for the country. Apparently, the dysfunction of the Senate has to continue so that the Republican-dominated D.C. Circuit can continue to make the dysfunction in Congress even worse.

Paul's filibuster of Brennan was not entirely without positive consequences. He did get the Obama administration to clarify that it did not have the power to kill Americans on American soil without due process unless they are engaged in combat, as well as bringing attention to abuses of executive power. But using the nomination of Brennan as the time for the filibuster also has the effect of letting Congress off the hook for its complicity in the expansion of arbitrary executive power in the name of national security. I would take Paul a great deal more seriously if he had, say, used procedural tricks to hold up the bill gives the president broad powers to detain terrorist suspects without charges or due process.

Paul's idiosyncratic and largely salutary filibuster aside, we shouldn't be confused about where congressional Republicans stand on the abuses of the national security state: they favor them. While Congress can't be bothered to exercise meaningful oversight of the executive branch's conduct of the "War on Terror," it can rouse itself to action in the rare cases where the Obama administration takes a more civil libertarian position. When Obama attempted to shut down the detention center at Guantánamo Bay, huge bipartisan majorities acted to prevent him from doing so. The bill authorizing military detentions that Obama signed was bad; the version Congress proposed before Obama's veto threat was even worse.

The Paul filibuster might signal a Congress that is no longer willing to manage the relatively difficult task of getting to Obama's right on civil liberties issues. But it is much more likely that this bit of theater will be a temporary blip, with Congress continuing to partner with the executive branch to expand the national security state. When it comes to ensuring that a Democratic president is unable to properly staff the executive and judicial branches, however, we can be confident that the Republican minority in the Senate will remain vigilant.

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