“As we all know, judges who sit on the D.C. Circuit are frequently considered for the Supreme Court. So there is a lot at stake with nominations to this court. This is a court where we can least afford to confirm an activist judge,” Sen. Charles E. Grassley (Iowa), the ranking Republican on the Judiciary Committee, said before the vote.
Sen. Lisa A. Murkowski (Alaska) was the lone GOP senator to support ending the filibuster.
The filibuster was the latest volley in a long war between the most ideological factions in each party. They have jousted over judicial nominees since the mid-1980s, hoping to influence rulings on legislation such as Obama’s health-care law and on executive orders, such as Obama’s recent use of interim appointments to agency posts.
Each side has repeatedly switched its position on filibusters depending on the political circumstances and which party controls the White House. A decade ago, during the administration of President George W. Bush (R), Senate Republicans criticized Democratic filibusters of appellate court nominees and tried unsuccessfully to change the rules to outlaw filibusters on judicial selections. But Wednesday, it was Republicans who were filibustering the judicial nominees of a Democratic president.
Halligan is the second high-profile appellate court nominee mentioned as a potential Supreme Court nominee to face a filibuster in the past two years.
Her nomination was the subject of special scrutiny because the D.C. Circuit has jurisdiction over much of the federal government. It has also been a reliable steppingstone to the Supreme Court ; four of the nine current justices served on this bench. So each side has treated nominees to the D.C. Circuit with extreme caution.
Democrats, who regularly filibustered Bush’s judicial nominees, lambasted Republicans for flipping on the issue. “I urge those [Republicans] who said they would never support a filibuster of a judicial nomination to end this filibuster. I urge those who said that they would only filibuster in ‘extraordinary circumstances’ to end this filibuster,” Sen. Patrick J. Leahy (D-Vt.), chairman of the Judiciary Committee, said in response to Grassley.
The final vote on cloture was 51 to 41, with an unusually large number of absences that were likely caused by the winter storm blanketing the region. Four Democrats who were certain to support Halligan missed the vote. Senate Majority Leader Harry M. Reid (D-Nev.) switched his vote to “no” so that he could move to reconsider the nomination in the near future. It appeared that the Democrats would need to pick up four votes to end a new filibuster on Halligan’s nomination.
It is unclear what the White House’s next move will be. Administration officials have signaled a desire to make a more diversified federal bench one of Obama’s lasting legacies. Before Wednesday’s vote, White House press secretary Jay Carney strongly criticized making “someone as clearly well-qualified as Ms. Halligan, who has bipartisan support from lawyers and law enforcement,” overcome a filibuster.
However, the White House and Senate Democrats have not demonstrated the willingness to stand and fight for a judicial nominee. Two years ago, when law professor Goodwin Liu’s nomination to the U.S. Court of Appeals for the 9th Circuit was filibustered, Obama made no public comment in his defense and Senate Democrats did not hold a single media event pushing for his confirmation.
Days after the first cloture vote failed, Liu withdrew his nomination.
Halligan is general counsel for the Manhattan district attorney’s office and previously served as solicitor general of New York state.
Republicans pointed to her work pursuing a lawsuit against the gun-manufacturing industry on behalf of the state, saying it showed her to be a “judicial activist” who would not hold a strict view of the Constitution.
“She was more than just an advocate,” Grassley said.
Democrats read letters of support for her from law enforcement officials, including New York City Police Commissioner Raymond W. Kelly.
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