Yesterday's vote by GOP senators appears to signal a partisan escalation in the federal judicial nomination process.
"An unworthy filibuster by the Senate on Caitlin Halligan," is the Washington Post editorial.
Voted well-qualified by a unanimous American Bar Association, Ms. Halligan was tapped by President Obama to fill a long-vacant seat on the U.S. Court of Appeals for the D.C. Circuit. She is general counsel for the New York County District Attorney’s Office in Manhattan and has served ably in public posts and private practice; she earned the enthusiastic support of a bipartisan group of legal luminaries, including Miguel A. Estrada, whom President Bush nominated to the D.C. Circuit.
Those who have worked with Ms. Halligan say she is a skilled lawyer with moderate views — a depiction that is at odds with the distorted portrait of her painted by Republicans.
Ms. Halligan’s nomination was blocked for two reasons: to keep a Democratic appointee from joining a bench that is considered a farm team for the Supreme Court; and to avenge the defeat of eminently qualified Republican nominees such as Mr. Estrada. It is a disgrace to the party that Lisa Murkowski of Alaska was the only Republican to endorse an up-or-down vote.
News coverage of the cloture vote begins with the New York Times, "Filibuster by Senate Republicans Blocks Confirmation of Judicial Nominee." It's written by Charlie Savage and Raymond Hernandez.
Senate Republicans on Tuesday blocked confirmation of Caitlin J. Halligan, a prominent New York lawyer, to be a federal appeals court judge, raising the question of whether a political deal to prevent the filibuster of most judicial nominations has broken down.
Democrats failed to pick up the 60 votes needed under Senate rules to break a filibuster of a confirmation vote for Ms. Halligan, a former New York State solicitor general. The vote to break the filibuster was 54 to 45 and was largely along party lines; only one Republican, Senator Lisa Murkowski of Alaska, favored allowing an up-or-down vote on Ms. Halligan, while no Democrats voted against it.
President Obama had nominated Ms. Halligan for one of three vacancies on the United States Court of Appeals for the District of Columbia Circuit, which is generally is considered the second-most powerful court in the country because it frequently hears cases involving the federal government.
In a statement shortly after the Senate vote, Mr. Obama expressed disappointment and accused Republicans of undermining the judicial confirmation process for partisan purposes.
“Her nomination fell victim to the Republican pattern of obstructionism that puts party ahead of country,” Mr. Obama said. “Today’s vote dramatically lowers the bar used to justify a filibuster, which had required ‘extraordinary circumstances.’ The only extraordinary things about Ms. Halligan are her qualifications and her intellect.”
"Judicial Wars Flare As Senate Blocks Obama Nominee," by Nina Totenberg at NPR.
Prior to that Halligan had served as chief of the appellate section of a top-tier law firm. She now is counsel for the Manhattan district attorney. The American Bar Association gave her its highest rating. Democrats said that Republicans had deliberately twisted and mischaracterized her record.
The Judiciary Committee's ranking Republican, Sen. Charles Grassley, was candid about GOP reasons for opposing Halligan, all but conceding that it is payback for Democrats stalling on judicial nominations when George W. Bush was president. Grassley said that six of President Bush's nominees, including now Chief Justice John Roberts, endured "delays, filibusters, multiple hearings, and other forms of obstruction."
Tuesday's vote would seem to signal the end of a 2005 agreement between Democrats and Republicans to end the judicial wars in the Senate by barring filibusters except in extraordinary circumstances.
"GOP filibusters judicial nominee," by James Oliphant of the Los Angeles Times Washington Bureau.
The Senate GOP filibustered the nomination of Caitlin Halligan, a New York lawyer who had won praise from some conservatives.
Republicans said they were concerned about Halligan's record on gun rights and terrorism detainee issues. All but one — Alaska's Lisa Murkowski — voted to prevent her nomination from going to the floor for a final vote, where the judge could have been approved by a simple majority. The final tally was 54 to 45, six votes short of the 60 needed to break the filibuster.
It marked the second time this year that Republicans have filibustered a key Obama judicial nominee. They denied Californian Goodwin Liu a seat on the U.S. 9th Circuit Court of Appeals in San Francisco in May. (A few months later, Liu was appointed to the California Supreme Court by Gov. Jerry Brown.)
"Filibuster Tests Senate Agreement on Judicial Nominees," by Humberto Sanchez for Roll Call.
Senate Democrats on Tuesday warned that a GOP-led filibuster of a judicial nominee could threaten future nominees and that the move calls into question a six-year-old bipartisan detente on judicial filibusters.
“I am concerned that today the Senate is backing away from the 2005 agreement that the minority would only block judicial nominees in extraordinary circumstances,” Senate Majority Leader Harry Reid (D-Nev.) said in statement.
On a 54-45 vote, the Senate failed to cut off debate, or invoke cloture, on the judicial nomination of Caitlin Halligan to join the District of Columbia Circuit Court of Appeals, falling short of the 60 votes needed to overcome a filibuster.
“Since Ms. Halligan’s nomination clearly does not meet that standard, Republicans today lowered the bar for filibustering judicial nominees,” Reid continued.
"D.C. Circuit Nomination Fails Cloture Test," by Andrew Ramonas for Legal Times BLT.
Obama first nominated Halligan in September 2010, but the Senate Judiciary Committee did not hold a hearing or a vote on her nomination before the Senate adjourned last December. Obama renominated her for the judgeship in January, and the Senate Judiciary Committee in March voted 10-8 along party lines to report her nomination to the full Senate.
The court has three open slots. The first vacancy dates to 2005, when John Roberts Jr. became chief justice of the U.S. Supreme Court. If confirmed, Halligan would fill Roberts’ old seat.
Another vacancy stems from D.C. Circuit Judge A. Raymond Randolph’s decision to take senior status in November 2008. Judge Douglas Ginsburg produced the final open seat when he announced in October that he would become a professor at of New York University School of Law in January.
Finally, commentary from Dahlia Lithwick for Slate, "Punch and Judge Judy." Here's the beginning of her must-read:
There is nothing funnier than Senate Republicans talking about judges. In the span of three hours today, Republicans went from extolling the sweet incomprehensible mystery of the legal process, to effectuating a rankly political filibuster of a highly qualified nominee to the D.C. Circuit Court of Appeals. At a hearing this morning about putting cameras into the Supreme Court, we heard high-minded GOP talk of de-politicizing the judicial branch and the impropriety of reducing whole cases to “snippets.” Within minutes, 54 Republicans had voted to deny cloture to Obama’s nominee, Caitlin Halligan, based on snippets of her writing and a partisan campaign to demonize her.
Halligan’s qualifications are not an issue. She clerked at the Supreme Court and then served for six years as New York State’s solicitor general. Halligan was endorsed by Supreme Court experts across the spectrum. She was nominated in September of 2009 to the federal appeals court, and reported out of committee last March. She was filibustered today by a long list of GOP senators—including members of the Gang of 14 that once agreed to avoid filibusters of judicial nominees except under what they termed “extraordinary circumstances.”
There were no extraordinary circumstances here. There were, in fact, no circumstances at all. Instead of scrutinizing Halligan’s qualifications, Senate Republicans went after her for some of her work as solicitor general of New York. She wrote a nuanced 17-page brief arguing that "the Legislature did not intend to authorize same-sex marriage." In the hands of GOP opponents, a single line from that opinion became evidence of “a record of advocating extreme liberal positions on constitutional issues.”
This is particularly astounding in light of the Republican rhetoric at this morning’s subcommittee hearing about televising Supreme Court proceedings. When Judge Anthony Scirica of the Third Circuit Court of Appeals started talking about the ways television allows for “snippets” of oral argument to be broadcast out of context, the Republicans were horrified. Oh no, not snippets! (“Snippets” is the judicial term of art for what would happen if Stephen Colbert got hold of videotapes of oral arguments.) All morning we were treated to the loftiest explications of how legal thinking is far too complicated for Americans to consume without their brains imploding from the effort. (In 1989 Justice Scalia explained, “That is why the University of Chicago Law Review is not sold at the 7-Eleven.”)
Earlier coverage of federal judicial nominations begins at the link. Related posts are in the judiciary and politics indexes.