A Little Historical Perspective On "Delays" In Confirming Judges

Yesterday, the Senate refused to invoke cloture and end the filibuster of the confirmation of Caitlin Halligan to the Court of Appeals for the D.C. Circuit. The White House released a statement in response saying, in part:

But today, her nomination fell victim to the Republican pattern of obstructionism that puts party ahead of country. Today’s vote dramatically lowers the bar used to justify a filibuster, which had required “extraordinary circumstances.”

This is rich coming from one of the most partisan administrations in recent history. Senator Chuck Grassley (R-IA) spoke on the Senate floor yesterday regarding the Halligan nomination as well as the other judicial nominations considered. The historical perspective provided by Senator Grassley illustrates the hypocrisy that lies behind Obama's statement on the Halligan filibuster. The relevant part of what Senator Grassley said is below:

With regard to the vote tomorrow, there will be some who say that this nomination has been vacant for too long, and that this nominee is being treated unfairly – needlessly waiting on the Calendar for too many weeks. Well, such arguments fail to consider the history of this seat or of the record established by my colleagues on the other side, regarding the consideration of nominations to the D.C. Circuit.

This seat has been vacant for over six years. It became vacant upon the elevation of John Roberts as Chief Justice back in September 2005. Following Justice Roberts appointment, Peter Keisler was nominated to fill the vacancy in June of 2006, with a hearing held on August 1, 2006. With a Republican majority in the 109th Congress, one would wonder why he never made it out of committee.

Well, it is not that he didn’t have the votes in Committee. The fact is - the Democratic minority would not allow a vote. This was accomplished by holding him over at his first markup, which the rules permit and is a legitimate exercise of the right of the minority. However, for the remaining executive sessions in September of that year, prior to final adjournment, they either made sure the committee did not have a quorum, so we could not vote, or they took the extraordinary step of invoking the 2-hour rule so the committee could not meet. I would note that a quorum was present early in one meeting but evaporated when Mr. Keisler’s nomination was the pending business. So basically, the opponents ran out the clock on this nomination. He didn’t get a committee vote; he didn’t get the courtesy of floor consideration – not even a cloture vote. Mr. Keisler was renominated in January 2007, when the Democrats again assumed control of the Senate. But his nomination sat in committee with no action until it was returned to the President in January 2009. He was the recipient of a pocket filibuster.

This was despite being rated unanimously Well-Qualified by the ABA Standing Committee on the Federal Judiciary and possessing outstanding qualifications to fill this position. So, complaints about this seat being vacant for too long just ring hollow with this Senator.

Likewise, when one considers the treatment of previous nominees to the D.C. Circuit, it is evident that the nomination of Ms. Halligan is not being treated in an unfair manner. In fact, her nomination is proceeding far better than many nominated to this court. I would remind my colleagues that previous nominees were subjected to delayed or multiple hearings, to extensive delays in committee, to multiple filibusters on the Senate floor. These include the nominations of Miguel Estrada – a Hispanic immigrant with a compelling personal story and outstanding judicial qualifications who was subjected to seven cloture votes; Janice Brown, an African-American female who had two cloture votes; Brett Kavanaugh, and Thomas Griffith. While all of these individuals, other than Mr. Estrada, were eventually confirmed, the procedural tactics used in their nominations made the confirmations difficult. I am not suggesting that is the pattern to follow, but it is relevant to the argument that Ms. Halligan is being treated differently or in an unfair manner.

As might be expected, the New York Times on its opinion page conveniently ignores this history just as did the White House.