Bench Memos

Cloture Defeated on Halligan Nomination

The Senate has just defeated the cloture petition on Caitlin Halligan’s nomination to the D.C. Circuit. Sixty votes were needed for cloture. The petition received only 54 votes in support and 45 votes against. (I believe that Senator Murkowski of Alaska was the only Republican to support cloture, but I’ll confirm that when I see the roll-call vote.) [Update: Here’s the roll-call vote. Murkowski was the only Republican yes vote. (Senator Hatch voted present, which is the functional equivalent of a no vote.)]

By their unprecedented resort to the filibuster against President Bush’s judicial nominees beginning in 2003 and by their opposition in 2005 to cloture reform, Senate Democrats paved the way for today’s result. Indeed, it’s worth noting that Senate Democrats first deployed the filibuster against D.C. Circuit nominee Miguel Estrada (who, like Halligan, was unanimously rated “well qualified” by the ABA). Seven separate cloture petitions on the Estrada nomination were defeated between March and July 2003, and only four Senate Democrats voted for cloture.

As I have said repeatedly over the years, I would favor the permanent abolition of the use of the filibuster against judicial nominees. (My consistent position since the launch of Bench Memos in 2005 is that the filibuster of judicial nominees is constitutionally permissible but a bad practice.) But, to repeat what I’ve said before, the only hope of getting to that goal of permanent abolition is for Republicans to make Democrats keenly aware that the costs of the filibuster can equally be inflicted on their nominees. Absent an entrenched bilateral agreement, Republican disavowal of the filibuster would be a sort of unilateral disarmament that would do nothing to deter Democrats from filibustering Republican nominees.

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