Today Republicans successfully filibustered Obama’s nomination of Caitlin Halligan to the U.S. Court of Appeals for the District of Columbia Circuit — a big deal, because this court is often seen as a testing ground for future Supreme Court nominees. She’s eminently qualified for the job, but the NRA — and, hence, Republican Senators — opposed her because she’d worked on a court case against the gun industry, something that weighed more heavily on them than any desire to see the federal courts function.
This prompted Senator Dick Durbin, a member of the Dem leadership, to threaten to revisit filibuster reform. “I hate to suggest this, but if this is an indication of where we’re headed, we need to revisit the rules again,” Durbin said.
That’s good. As it happens, the filibuster of Halligan is the perfect illustration of the ways in which Dems continue to live with the consequences of the weak filibuster reforms they passed earlier this year.
Here’s why: If reformers like Jeff Merkley and Tom Udall had gotten their way, today’s GOP filibuster of Halligan would likely have failed.
As you may recall, one of the provisions the reformers were pushing would have transferred the burden from the party trying to break the filibuster to the party trying to sustain it. That is, the provision would have required the filibustering party to muster 41 votes to keep the filibuster going, rather than requiring the majority party to muster 60 votes to end it.
Today’s Senate vote on Halligan was 51-41, falling well short of the 60 needed to break the GOP filibuster. Harry Reid switched his vote to No for procedural reasons. In other words, Republicans mustered only 40 votes against the nomination, partly due to absences from the Senate today. (Four GOP Senators didn’t vote.)
Under the provision sought by Merkley and Udall, this would have fallen short of the 41 votes needed to sustain the filibuster, and it would have ended.
In other words, this is a case where the reformers’ provision would have functioned exactly as it was intended to. In cases where Senators are absent, it would have made it harder for the minority party to continue obstructing the will of the majority. Instead, the obstruction continues unabated.
Keep the threat of filibuster reform alive, Dems. In the Senate, nothing is changing.
UPDATE: It’s true, as Jonathan Bernstein points out, that if Republicans needed 41 votes to sustain the filibuster, one of the absent Republicans might have shown up. But the basic point still stands: Here’s a case where better filibuster reform would have made obstructionism harder and less likely to succeed. Without this reform, absences essentially continue to count as No votes.