Last Friday afternoon, the Obama administration surrendered on its latest attempt to fill one of four vacancies on the nation's second most-important court.
Caitlin Halligan, facing a Republican filibuster, officially withdrew from consideration for a judgeship on the D.C. Circuit Court of Appeals. This is not surprising or unexpected. Halligan, who was nominated to fill the seat vacated by Chief Justice John Roberts, had seen her nomination languish since 2010. The successful filibuster that snuffed Halligan's nomination early this March represents another example of why real reform or (better yet) elimination of the filibuster is desperately needed.
The filibustering of Halligan is striking, even in the context of an utterly dysfunctional Senate, for two reasons. First, Halligan is a mainstream nominee, with broad support for her credentials and temperament from across the political spectrum. And second, Obama is the first president in at least 50 years not to get a single nominee confirmed to the D.C. Circuit, despite a relatively large number of vacancies. Obama isn't packing the court or looking to staff it with radical liberals, and yet a minority in the Senate is preventing him from replacing a seat that has been vacant for seven years and counting.
What justifications did the Republicans offer for this extraordinary act of obstructionism? Senate minority leader Mitch McConnell turned to one of the emptiest cliches in the modern Republican playbook. "In short, Ms. Halligan’s record of advocacy and her activist view of the judiciary lead me to conclude that she would bring that activism to the court," McConnell asserted. Repeating the word "activist" twice is a nice touch. "Judicial activism" is, of course, has become a completely vacuous tautology that means nothing more than "a judge whose decision I don't agree with." The frequent Republican use of the term has become particularly farcical given the nearly successful Republican campaign to strike down the centerpiece legislation of the Obama administration's first term based on egregiously flimsy ad hoc constitutional arguments. (McConnell, needless to say, disapproved of the Court's ultimate lack of activism.)
The filibustering of Halligan is even more remarkable when you consider who has been confirmed to sit in the court. George W. Bush had three nominations for the D.C. Circuit confirmed. Two, Thomas Griffith and Starr Report author Brett Kavanaugh, are generic conservative Republicans, certainly no more qualified or more "mainstream" than Halligan. But then there's Bush's third appointment, Janice Rogers Brown. Brown is a radical reactionary, a true believer in the strain of Republican thought that would reduce the federal government to its 19th century scope (although this scope wasn't even adequate for the problems of the nineteenth century.) Just last year, Brown lamented that "America's cowboy capitalism was long ago disarmed by a democratic process" and implied that well-established precedents holding that economic regulations need only have a rational basis were wrong. Rogers could not cite the specific constitutional provisions violated by ordinary economic regulations, because they don't exist, but she did call the New Deal "the triumph of our socialist revolution."
That a mainstream Democratic nominee can't receive a vote from the Senate while someone who believes the modern regulatory state to be unconstitutional can be confirmed conclusively illustrates the futility of gentlemen's agreements to reform Senate procedures. Brown was confirmed under the inexplicably hyped "Gang of 14" agreement that was supposed to reduce filibusters of judicial nominees. Under the Gang of 14 deal, filibusters of judicial nominees were supposed to take place only under "extraordinary circumstances." But, as is so often the case, this deal was a con, with Senate Democrats playing the sucker. After Democrats allowed even some of Bush's most radical nominees (including Brown) to be confirmed, Republicans have responded by ratcheting up their obstructionism. In 2005, a judge committed to constitutional views that have been discredited for 80 years and considers the New Deal "socialism" did not constitute "extraordinary circumstances." In 2013, an extremely well-qualified nominee having views closer to those of the president and a majority of the Senate than of the Senate's minority party constitutes an "extraordinary circumstance."
This problem is likely to get worse before it gets better. President Obama is not blameless for the failure to get any nominees confirmed to the D.C. Circuit, as judicial appointments have not been enough of a priority. But there's a chicken-and-the-egg problem here: when even well-qualified, mainstream Democratic nominees can expect to get filibustered, it become harder to blame Obama for investing his political capital elsewhere. It will also be harder to convince prospective nominees to put their lives on hold for judicial nominations that are less and less likely to lead to confirmations even for nominees that have clear majority support.
If any Democrats are particularly to blame for the filibuster, it's not President Obama but the key Senate Democrats who continue to put their parochial interests ahead of party and country by refusing to seriously reform the filibuster. As was obvious at the time, January's filibuster "reform" deal was entirely worthless. Mitch McConnell is not about to adhere to informal promises, and to his credit he's perfectly transparent about it. Until a Senate Democrats become serious about majority rule in their institution, things like the failure of the Halligan nomination will continue to happen. And while we're waiting, the Republican-dominated D.C. Circuit will continue to to things like eviscerate the president's recess appointment power. This cycle of dysfunction needs to be broken by allowing Senate majorities to actually govern, and allowing the president to properly staff the executive and judicial branches.