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Filibuster Tests Senate Agreement on Judicial Nominees

Bill Clark/CQ Roll Call File Photo
Sen. Charles Schumer said that an agreement on judicial nominees has been violated because of a GOP filibuster for a recent nominee.

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.

All Democrats voted to cut off debate. Sen. Lisa Murkowksi (Alaska) was the only Republican to vote against the filibuster. Sen. Orrin Hatch (R-Utah) voted present.

Murkowski said Halligan deserved an up-or-down vote.

“I stated during the Bush Administration that judicial nominations deserved an up-or-down vote, except in ‘extraordinary circumstances’ and my position has not changed simply because there is a different President making the nominations,” she said in a statement.

“Let me be clear to my constituents and the President of the United States: This was a cloture vote to proceed to an up-or-down decision. I did not support Ms. Halligan’s candidacy and would never have voted for her confirmation.”

Senate Judiciary ranking member Chuck Grassley (R-Iowa) said he opposed the nomination because of Halligan’s views but also because he doesn’t believe the position is needed.

“It’s not a case of filibustering this judge just because of what her philosophy is,” Grassley said. “That is a good reason for doing it, but whether or not this vacancy ought to be filled” is another matter. The slot that Halligan was nominated for, to replace U.S. Chief Justice John Roberts, has been vacant for years.

“This case was raw partisanship,” a Senate Democratic leadership aide said. “This was a precedent-setting vote that could throw future nominees into chaos.”

Republicans by and large argued that the judge’s positions allow them to invoke the extraordinary circumstances clause under an informal agreement developed by a group 14 Senators, seven from each party, in the spring of 2005 that broke a logjam on judicial nominees.

Prior to the “gang of 14’s” accord, then-Senate Majority Leader Bill Frist (R-Tenn.) was considering a change in Senate rules to eliminate use of the filibuster to prevent judicial confirmation votes. Frist’s maneuver was dubbed the “nuclear option,” or, as he called it, the “constitutional option,” and the group formed to address the issue.

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