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Senate GOP Vows Golden Rule on Judges

Tom Williams/CQ Roll Call File Photo
Sen. Lindsey Graham, a member of the “gang of 14” that came to a 2005 agreement to not filibuster judicial nominees outside of extraordinary circumstances, says he expects more of President Barack Obama’s nominees to be approved next year.

Senate Republicans have high hopes of reclaiming the majority and possibly the White House next year, and that’s precisely why they say this week’s filibuster of D.C. Circuit Court nominee Caitlin Halligan is not a harbinger of a freeze on President Barack Obama’s judicial nominations.

Sen. Lindsey Graham (R-S.C.) believes the golden rule applies in politics as much as it does in morality. 

“‘Do unto others as you would have them do unto you’ was a good rule a long time ago, and I think it applies today,” Graham said. “I just think we ought to run the place assuming you won’t be in charge one day.”

Graham and other Senate Republicans said they expect more of Obama’s judicial nominees to be approved by the Senate next year, as long as the nominees’ views are within the mainstream and they are properly vetted.

“I don’t hear any difference in tone here [in the Senate GOP Conference] if they are reasonable, even if they are liberal,” Sen. Jim DeMint (R-S.C.) said. He added that Republicans reserve the right to object to judicial “activists ... [who] don’t have the temperament or the ability to look at things objectively.”  

Graham was one of 14 Senators — seven Democrats and seven Republicans — who developed a gentlemen’s agreement in 2005 that broke a judicial logjam.

Nine members of the original “gang of 14” remain in the Senate. Under the accord, they would not vote with their party on filibustering judicial nominees except in the case of extraordinary circumstances as defined by each individual Senator.

Prior to the gang accord, then-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.

The Senate has, for the most part, continued to adhere to the agreement. Only two judges have been filibustered since 2005: Goodwin Liu and Halligan, who was blocked on a Tuesday vote that fell six votes short of the 60 needed to overcome a filibuster. Halligan was nominated by Obama to join the D.C. Circuit Court of Appeals.

Sen. Mike Lee (R-Utah) also said the Halligan vote was no watershed. Lee said the GOP treads lightly when it comes to filibustering judicial nominations, in part, for fear of antagonizing Democrats in the event that Republicans win the majority.

“We don’t want to abuse [the filibuster of judicial nominees] because abusing it is wrong,” Lee said. “But also there are consequences attached to abusing it and that is [another reason] why we are not abusing it.”

Sen. Lisa Murkowski (R-Alaska) said she is cautiously optimistic that more judges will be confirmed. She is helping to guide Morgan Christen’s nomination to join the 9th U.S. Circuit Court of Appeals through the Senate.

“When we were looking at the schedule earlier this session, the mindset was that we would be able to get to her before the end of the year,” Murkowski said. “She has unanimous support coming out of the Judiciary Committee. In a confirmation hearing, there was not a cautionary word ... so I think that all is good. It remains to be seen how good.”

Graham stressed that his opposition to Halligan had more to do with the D.C. Circuit Court of Appeals than her qualifications. Republicans contend that the court’s workload isn’t enough to merit another judge.

Republicans argued that they had sought to fill the spot under President George W. Bush, but Democrats used the same argument about the workload being too light.

“They opposed a Republican nomination to the D.C. Circuit Court because it was overprescribed,” Graham said. “Some of us agreed with it then. I am not about to go to my Republican colleagues and say ‘Alright, let’s give them a position that they said was overprescribed.’”

“Your prior position is coming back to haunt you,” Graham said of Democratic opposition under a GOP president. 

Others said that Halligan had extreme views, which rose to the level of an extraordinary circumstance as specified in the gang of 14 agreement. GOP Members opposed her particularly because of what they said were her views on the Second Amendment. That was also the reason cited by Heritage Action for America, which “key voted” her nomination, arguing that her position on gun rights was unpalatable.

After Tuesday’s vote, Democrats cast it as a strictly partisan move that called into question the gang of 14 agreement and possibly threatened future judicial nominees.

Sen. Charles Schumer (N.Y.), who runs the Senate Democrats’ policy and communications operations, was particularly incensed because Halligan is from New York and Schumer was leading the effort to get her nomination through the Senate.

“If Republicans are going to suddenly junk that [gang of 14] six-year armistice, it could risk throwing the Senate into chaos on judicial nominees. Senate Republicans seem to want to declare open season for filibusters of judges again,” Schumer said.

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