March 5, 2013

Senate Majority Leader Harry Reid (D) has filed cloture on the nomination of Caitlin Halligan for the D.C. Circuit. It’s an important nomination — Barack Obama is the first president since Hector was a pup to not place anyone on that critical court, and this is one of four current vacancies.

It’s also an important test vote for judicial nominations in the 113th Senate. The filibuster against Halligan has been going on for some time and included a cloture vote that received only 54 “yes” votes in December 2011. Every Democrat and one Republican, Lisa Murkowski of Alaska, supported Halligan at that point. So presumably she starts with 56 votes this time (55 Democrats in this Senate, plus Murkowski). Among other things, this cloture vote will show whether the recent willingness of quite a few Republican Senators to vote for cloture and then against confirmation (as in the Chuck Hagel Defense nomination) will extend to high-level judicial nominations as well.

What the Halligan cloture vote will not tell us, however, is anything about the recent Senate reforms. For that, yesterday’s vote on District Court pick Katherine Polk Failla, confirmed 91-0 after originally being nominated in June 2012, is a better indication. That is, Senate reforms did absolutely nothing about cases in which the minority had at least the 41 votes needed to prevent cloture. But reform was supposed to make it easier to process less controversial, and especially entirely uncontroversial, nominations. Failla is the third nominee confirmed this year. Is that good? Well, it’s early, and remember that everyone had to be re-nominated and then considered again by the Judiciary Committee, and then floor time had to be found.

For what it’s worth, however, note that none of the easy confirmations this year have needed cloture votes. Nor were cloture votes required on either John Kerry or Jack Lew. That suggests — although it’s surely too soon to know — that Republicans are backing off a bit from their tactics of forcing the Senate to spend extra floor time on such nominations. That’s a big deal, if true; floor time is scarce, and at least some of the reason that relatively (or completely) uncontroversial picks lingered on the Senate calendar without action in Obama’s first term was the threat that Republicans could eat up almost a full week of Senate time on each one.

So, yes, the Halligan nomination is important and an important test of where votes lie in the new Senate. But the real test for Senate reform is how quickly Reid moves to get the other nominations already approved by the Judiciary Committee onto the Senate floor. Especially the dozen that were approved unanimously.

Whether a large minority should be able to prevent a lifetime judicial nomination is a complicated question, and at any rate one that actual Senators from both parties think is complicated. But I know of no reasonable objections to moving 99-0 nominations, or even those with lopsided but not unanimous support, through the Senate quickly. And the truth is, that hasn’t been happening for the past four years. If Senate reform has made that easier, it was worth doing and will actually help the government run better.

 

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