Bench Memos

The Halligan Filibuster and the New “Gang of 14” Mythology—Part 2

Numbering my points serially from my Part 1 post:

4. But might it be the case that the Gang of 14 Agreement, though no longer in effect after 2006, fostered a bipartisan atmosphere of collegiality that (to use NYT’s phrase) “has guided the way the Senate has handled most appeals court nominations” since then? After all, the argument might go, there was only one cloture vote on a federal appellate nominee during the 2007-2008 Congress, compared to four during the 2005-2006 Congress.

Such an argument would be deeply confused. The reason that there was only one cloture vote during the 2007-2008 session was that the Democrats, having gained control of the Senate, could obstruct any unwelcome nominee at an earlier stage by (among other things) the simple step of Senate Judiciary Committee chairman Leahy’s not scheduling a hearing on the nominee. That’s why President Bush’s superbly qualified nominee to the D.C. Circuit, Peter Keisler, never received a hearing. And that’s why Fifth Circuit nominee Michael Wallace withdrew his candidacy in the aftermath of the November 2006 election.

Senate Democrats (led by then-Senator Obama) had to resort to a filibuster effort against Fifth Circuit nominee Leslie Southwick only because the Left waited until the eve of Southwick’s hearing to decide that it wanted his scalp. As I’ve reported:

The Democrats on the Senate Judiciary Committee were already familiar with Southwick and his record, as they late [in 2006] unanimously approved President Bush’s nomination of Southwick to a federal district-court seat. (The full Senate failed to act on that nomination.) When Michael B. Wallace withdrew his hotly contested nomination to the Fifth Circuit at the end of 2006 and President Bush nominated Southwick in his stead, there was no reason to expect the nomination to become controversial. In fact, leading Senate Democrats, including majority leader Harry Reid and committee chairman Patrick Leahy, assured their Republican colleagues that Southwick would be confirmed before Memorial Day.

The numbers confirm what everyone involved in the process knows—that there was no new era of good feelings in 2007 and 2008. In 2005 and 2006, the Senate confirmed 16 federal appellate nominees, in addition to two Supreme Court justices. In 2007 and 2008, the Senate confirmed only ten nominees, and one of those, Helene White, was a former Clinton nominee whom Democrats demanded President Bush nominate if they were going to permit the confirmation of Raymond Kethledge.

5. Some of the discussion by Democrats and the media of the Gang of 14 Agreement leaves the impression that the agreement somehow should be deemed to have permanently changed the Senate’s practices. To put it mildly, it’s quite odd that many of the same folks who believe (wrongly) that a Senate majority can’t exercise the constitutional power of the Senate to “determine the Rules of its proceedings” imagine that an agreement among fourteen senators could effectively have done the same thing.

6. The question whether or not Halligan’s nomination presented “extraordinary circumstances” is, to my mind, unintelligible because I think that the “extraordinary circumstances” standard is inherently so subjective that it is practically meaningless. But far from lowering the bar, as President Obama has claimed, I do think it clear that the filibuster of Halligan’s nomination easily exceeds the threshold that then-Senator Obama, Senator Schumer, and other Democrats established before, during, and after the life of the Gang of 14 Agreement.

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