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Ornstein: A Tale of Two Filibusters

The story of Sen. Rand Paul’s filibuster captivated the national media. In part because of its novelty; we have not seen a real, old-fashioned, pull-out-the-cots-and-go-round-the-clock filibuster in decades, save a few faux 24-hour filibusters staged by Majority Leaders Bill Frist, R-Tenn., and Harry Reid, D-Nev., that were more dramatization than anything else.

Paul, a Kentucky Republican, was Jefferson Smith and Strom Thurmond combined. Thurmond used to wax on about his epic marathon 24-hour, 18-minute filibuster against the civil rights bill of 1957, when liberal adversaries would come up to him and offer him orange juice or water to try to get his bladder filled and force him off the floor. Evidently, Rand Paul does not have quite the same iron bladder, but 13 hours is plenty impressive.

Paul’s filibuster also attracted positive attention because he was clearly moved by an important substantive issue and spoke passionately and eloquently about it — and stayed focused on the issue with off-the-cuff comments throughout, not falling back on reading passages from a book or classified ads just to fill up the time.

Finally, when he ended his filibuster, he did not use unreasonable obstructionist tactics to further delay the nomination of John O. Brennan as CIA director when it was clear the nominee had more than the 60 votes needed.

As Paul was burnishing his national reputation and getting major media focus, another filibuster was virtually ignored.

Caitlin J. Halligan, a superbly qualified lawyer nominated to the D.C. Circuit Court of Appeals, was blocked for the second time via a partisan filibuster in which 40 Republican senators voted against cloture.

In a city and a body filled with hypocrisy, every Republican senator who eloquently proclaimed in 2005 that filibusters against judicial appointments were both wrongheaded and unconstitutional supported this filibuster. That includes all of those who participated in and supported the famous “gang of 14” compromise that freed up several judicial appointments made by President George W. Bush and that has never been negated or repudiated. Until now.

The ostensible reason for opposing — and filibustering — Halligan is that she wrote a brief as a lawyer working for then-New York Attorney General Andrew M. Cuomo offering legal rationale for holding gun manufacturers liable for some share of gun violence. In other words, she represented her client.

It is a nonsensical rationale that would disqualify any lawyer who ever represented a client unsavory to a significant share of the political process, which is any sentient lawyer who has ever practiced law.

Of course, the filibuster is not about Halligan’s position on guns. It is about a clear effort to use delaying tactics to keep as many vacancies as possible on the federal courts in case the 2016 elections produce a Republican president. Obama’s maddeningly slow nomination process has been a real problem to be sure. District and appeals court nominees alike have faced obstacle after obstacle.

But it is on the D.C. Circuit that the obstruction is most evident.

Patricia Wald, the eminent judge on the D.C. Circuit who now has senior status, wrote recently about the heavy toll on the circuit, which has four vacancies and the heaviest and most complex workload of all the courts of appeals. The D.C. Circuit currently has a conservative bent, shown most recently in the ruling of a three-judge panel led by the notorious David B. Sentelle that struck down the bulk of recess appointments.

Republicans in the Senate clearly want to keep that bent. Another superb nominee, Sri Srinivasan, will come up soon and we will see if he faces the same filibuster hurdle. I am not opposed to judicial filibuster, lifetime appointments are different. But only if they are based on individual candidate qualifications, not a partisan strategy to keep slots open.

Liberals in the Senate are pushing the White House to put highly qualified nominees for all four vacancies on the floor together. If they are all filibustered, it will make clear the opposition is as described above. If it is a broader strategy to use filibusters to block the bulk of Obama nominees to key judicial posts, and not isolated cases, you can be sure that the filibuster compromise worked out in January by Reid and McConnell will be revisited.

Norman Ornstein is a resident scholar at the American Enterprise Institute.

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