The other filibuster: Senate GOP blocks judicial nominee
One filibuster on Wednesday received an avalanche of publicity but eventually failed to halt the proceedings that provoked the filibuster in the first place.
Another filibuster on Wednesday received little publicity but successfully gummed up the business of the chamber, dealing a defeat to the majority party.
The former was Rand Paul's 13-hour colloquy on the Senate floor objecting to the nomination of John Brennan as CIA director over the issue of targeted drone strikes. Less than day after Paul's filibuster ended, Brennan was confirmed by the Senate, but not before Paul entered the zeitgeist.
The less publicized - but more consequential - filibuster was the Senate GOP's successful blockade of the nomination of Caitlin J. Halligan to the federal appeals court for the District of Columbia. Senate Democrats failed to bring the debate on Halligan's nomination to a close after Republican lawmakers objected to her earlier work on gun laws as solicitor general for the State of New York
"I have a number of concerns regarding Ms. Halligan's views that indicate she will be an activist judge," Iowa Sen. Charles Grassley, the top Republican on the Judiciary Committee, said in a statement. "Ms. Halligan advanced the novel legal theory that gun manufacturers, wholesalers, and retailers contributed to a 'public nuisance' of illegal handguns in the state. Therefore, she argued, gun manufacturers should be liable for the criminal conduct of third parties."
Democrats, parrying the charge of judicial activism, said Halligan was executing her duties as solicitor general, not as a jurist. They further accused Republicans of overstating their opposition to Halligan's nomination to justify a filibuster that flouts a 2005 agreement to only filibuster judicial nominees in "extraordinary circumstances."
In 2005, the Senate was riven in two, nearly paralyzed by the delay of several of then-President Bush's nominations to the federal bench. Republicans, then the majority party in the Senate, were so incensed by Democrats' stalling tactics that they began considering a "nuclear option" - an adjustment of Senate rules to ban filibusters on judicial nominations.
The "nuclear option" was defused when a bipartisan group of 14 senators stepped forward with an agreement to only filibuster judicial nominees in extreme cases. In the end, President Bush was able to appoint three jurists to the D.C. appeals court, a powerful panel often considered a talent pool for the Supreme Court, and a crisis was averted.
Senate Republicans' move to block Halligan's nomination on Wednesday, however, has torn the scab off.
"If you go back to the history of what occurred back then, there is a real question of whether they have broken the deal now," Sen. Tom Udall, D-N.M., told the New York Times. "This is a key circuit for the country. What they are doing is not allowing these consensus candidate judges to get votes.
Udall is among a group of mostly junior members of the Senate pushing rules that would make the filibuster more difficult to sustain and less common, including a provision that would require the filibustering senator to actually hold the floor as did Paul on Wednesday. In January, Senate Majority Leader Harry Reid, D-Nev., and Senate Minority Leader Mitch McConnell, R-Ky., reached an agreement that modestly trimmed the utility of the filibuster.
Those changes, however, have not yet made business any easier for the majority party. Republicans have continued to make ample use of the filibuster, from the nominations of Halligan and Brennan to the prior fight over Defense Secretary Chuck Hagel, who was also filibustered before winning confirmation last month.
Democrats are not happy, and while they are not vowing to revisit the rules that were changed less than two months ago, they are clearly eyeing a confrontation of some kind.
"We need to design a strategy to counter the Republicans," said Udall, "and we are going to need the president."