A Tale of Two Filibusters

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Today has been an interesting day for filibusters. This morning, the Senate filibustered President Obama's nomination of Caitlin Halligan to the DC Circuit Court of Appeals. Halligan isn't unqualified and she isn't a radical. Her only offense is that Obama wants her for one of the most important courts in the country. As such, Republicans successfully filibuster her nomination, by a vote of 51 to 41. Sixty votes are needed to break a filibuster and move to a final vote.

Shortly after this vote went down, Senate Majority Whip Dick Durbin announced his intent to reintroduce filibuster reform, perhaps frustrated by the Halligan nomination and the general approach of the GOP, which is to filibuster anything that might provide an advantage to President Obama:

“We have tried at the beginning of this Senate session to avoid this kind of filibuster confrontation. The last several years we have had over 400 filibusters — a record number of filibusters in the Senate,” Durbin said.

“I hate to suggest this, but if this is an indication of where we’re headed, we need to revisit the rules again,” the Illinois Democrat said. “We need to go back to it again. I’m sorry to say it because I — was hopeful that a bipartisan approach to dealing with these issues would work.”

“It’s the best thing for this chamber, for the people serving here and the history of this institution,” Durbin said of the bipartisan arrangement. “But if this Caitlin Halligan nomination is an indication of things to come, we’ve got to revisit the rules.”

Any agreement that doesn't significantly change how the filibuster is used is almost certain to fail, given the strong GOP incentive for obstruction. The filibusters of Halligan and Hagel may have given Democratic reformers the ammunition they need to make another argument for the necessity of change. And if the filibuster does change? Odds are decent that it will require a return to the "talking filibuster," as depicted in Mr. Smith Goes to Washington.

And on that point, it's worth noting Kentucky Senator Rand Paul's filibuster of John Brennan, Obama's nominee to lead the CIA. Paul, who strongly opposes the Obama administration's use of drones, is using the nomination—and the filibuster—to make a point about the lack of oversight or restraint in foreign policy:

“I will speak until I can no longer speak,” Paul said. “I will speak as long as it takes, until the alarm is sounded from coast to coast that our Constitution is important, that your rights to trial by jury are precious, that no American should be killed by a drone on American soil without first being charged with a crime, without first being found to be guilty by a court.”

He is the first to use a talking filibuster in more than two years—the vast majority of filibusters involve procedural moves, not talking.