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Bench Memos

NRO’s home for judicial news and analysis.

President Obama’s Extraordinary Amnesia



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In a statement today on the defeat of the cloture petition on Caitlin Halligan’s D.C. Circuit nomination, President Obama asserts, “Today’s vote dramatically lowers the bar used to justify a filibuster, which had required ‘extraordinary circumstances.’” His assertion is false or meaningless.

If the “extraordinary circumstances” standard has any determinate meaning (and I don’t believe that it does), then it’s telling that all the Democratic members of the Gang of 14 determined that the nominations of Samuel Alito to the Supreme Court and of Janice Rogers Brown, William Pryor, and Priscilla Owen to federal appellate seats did not present “extraordinary circumstances” that would justify a filibuster. But Obama himself, as a senator, voted against cloture on all these nominations. And virtually all Senate Democrats voted against cloture on these (and other) nominations in 2003 and 2004. (Obama joined the Senate in 2005, so he did not vote on the spate of cloture petitions in 2003 and 2004, though it’s rather clear from his pattern of votes how he would have voted.)  So either they weren’t applying an “extraordinary circumstances” standard then, or the standard is meaninglessly subjective (indeed, so meaninglessly subjective that the Democrats who were the members of the Gang of 14 could have found it to have been satisfied for a nominee in 2003 but not satisfied for the same nominee in 2005).  

In 2007, Obama was among the 35 Democrats who voted against cloture on the nomination of Leslie Southwick to the Fifth Circuit. Obama even led the shameful and mendacious campaign against Southwick. The idea that “extraordinary circumstances” justified the Democrats’ filibuster effort against Southwick is absurd. Democrats who voted for cloture on the Southwick nomination included Akaka, Byrd, Carper, Conrad, Dorgan, Feinstein, Inouye, Johnson, Lieberman, Lincoln, Nelson (of Nebraska), Pryor, and Salazar.

President Obama is reaping what he helped sow. He has no cause to complain.



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