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Saturday, March 09, 2013

Caitlin J. Halligan and the Silent Filibuster

On the day of the soon-to-be-legendary Rand Paul Filibuster the Republicans took part in a "silent Filibuster", which is typical, and the only problem I had with it was finding the terminology to make a quick short distinction between the filibuster that happens almost all the time, the quiet one that the Democrats used against President Bush's nominees the same way that the Republicans used against President Obama's nominees, and the what I call a "real filibuster" or "actual filibuster".  An obvious example of a real filibuster is the Rand Paul Filibuster, which will go down in history along with Huey Long's filibuster and the Strom Thurmond Filibuster.

The Young Turks makes the distinction as such.



From my research the guy in the video gets the "extraordinary circumstances" part of the recent history of the filibuster correct, but he also summarizes her purported abuse of power as the New York state Solicitor General as just "doing her job".  I do not understand wielding the government to sue gun manufacturers as a standard part of anyone's occupation.  I will just take the commentary from a Gun Control Second Amendment blog:
Even before the gun rights debate Halligan has been under fire over Second Amendment issues, being targeted by the GOP in 2011 via a filibuster. Now that the battle over the right to bear arms is in full swing, her anti-gun agenda is even more under scrutiny. By a vote of 51-41, the debate on Halligan's nomination was ended by the Senate.

Sixty votes are needed for it to go forward. Republicans note that Halligan is an activist judge who uses her personal views in making many of her judgements.

Orrin G. Hatch, R-Utah, said about Halligan that she is “one of the most activist judicial nominees that we’ve seen in years. The Senate owes the president no deference [on such a pick].”

Halligan has supported the atrocious legal argument that would criminalize gun manufacturers for crimes committed using their firearms. It's seen largely as an attempt to slow down gun sales.

Gun Owners of America said this about Halligan: “As New York’s solicitor general, Halligan was one of the chief lawyers responsible for New York’s baseless and politically motivated efforts to bankrupt gun manufacturers using frivolous litigation,” adding that Halligan “one of the most anti-gun judicial nominees in recent memory.”
Now the "extraordinary circumstances" may seem to apply here but that was part of the non-aggression pact called The Gang of 14 and that expired when the bulk of those Senators left office years ago. After that, partisanship is essentially the rule. The NRA and the GOA are aligned when the Republican Party, so here we are.  The New York Times notes
The Senate, in a 51-to-41 vote, fell well short of the 60-vote threshold needed to cut off debate and bring Ms. Halligan’s nomination to a vote. The largely party-line vote, with only Senator Lisa Murkowski, Republican of Alaska, joining with Democrats in favor of ending debate, was reminiscent of the previous filibuster of Ms. Halligan — another largely party line vote of 54 to 45.
Many Republicans said they oppose Ms. Halligan’s nomination to the United States Court of Appeals for the District of Columbia Circuit because of what they say is her history of legal activism; most specifically, they say that as the solicitor general of New York State, she worked to advance the “dubious legal theory,” in the words of Senator Mitch McConnell of Kentucky, that gun manufacturers could be held legally responsible for criminal acts committed with their guns.
“In short, Ms. Halligan’s record of advocacy and her activist view of the judiciary lead me to conclude that she would bring that activism to the court,” Mr. McConnell, the Republican leader, said on the Senate floor. “Because of her record of activism, giving Ms. Halligan a lifetime appointment on the D.C. Circuit is a bridge too far.”
Democrats said that Republicans were interested mainly in stalling any appointments by President Obama to the influential court, which reviews many critical cases on government powers. They said that Republicans could not point to a single case of judicial activism on Ms. Halligan’s part, and that during her time as solicitor general, she was simply doing her job and acting in the interests of the State of New York.
“I challenge the other side to give me one instance where they disagree with something that Ms. Halligan stated as her own views as opposed to representing someone as a lawyer should,” Senator Charles E. Schumer of New York, the No. 3 Democrat, said on the Senate floor. “What’s going on is our colleagues want to keep the second-most important court in the land, the D.C. Circuit, vacant, because right now there are four vacancies and the majority of those on the court have been appointees of Republican presidents and, in fact, are very conservative.”
Ms. Halligan’s nomination was the latest test of the “Gang of 14 deal” reached in 2005 under President George W. Bush, in which seven Democrats and seven Republicans joined together to allow up-or-down votes on certain high-level judicial nominees except in the case of “extraordinary circumstances.”
Only five members of the original Gang of 14 remain in the Senate — three Republicans, Susan Collins of Maine, Lindsey Graham of South Carolina and John McCain of Arizona, and two Democrats, Mary L. Landrieu of Louisiana and Mark Pryor of Arkansas — and the three Republicans all voted against allowing a vote on Ms. Halligan.
When asked if their vote was in the spirit of the 2005 agreement or a filibuster reform deal reached this year, several Republicans said Ms. Halligan’s nomination met the “extraordinary circumstances” threshold.
“I think it meets the extraordinary circumstances, because of her extraordinary egregious record,” Mr. McCain said. “This is an extraordinary circumstance.”
Senator Johnny Isakson, Republican of Georgia, similarly said he was looking to the Bush-era agreement in voting against Ms. Halligan’s nomination.
Well they basically said everything I said but they have more detail and I am absolutely biased. Now there are two points here I find interesting in this in light of the Rand Paul Filibuster.  The first is that is a silent filibuster and thus it seems to leave the issue indefinitely blocked without the inconvenience of having a powerful and dignified American federal legislator attempting to prevent the evacuation of his bladder.  The second is that in this instance John McCain was fully on-board with this along with Rand Paul.  It turns out there are a lot of Republican convictions that Senator McCain will stand strong on; Senator McCain spoke in defense of blocking Ms Halligan's nomination.

An additional contrast is that unlike Rand Paul's filibuster, the Republicans genuinely scored a victory here insomuch as the nomination-approval of the Senate was actually prevented.  Don't get me wrong: I understand John Brennan was caught in the crossfire and what Senator Rand was attempting to debate was irrespective of the powers of the Director of the Central Intelligence Agency.

The Caucus, the New York Times Political Blog, calls the blocking of Halligan the more significant event.
Senator Rand Paul may have staged a Senate-shaking filibuster Wednesday, but his was actually only the second most significant Republican filibuster of the day.
I would not have phrased it that and actually I disagree entirely that the Rand Paul Filibuster was less significant, especially in the wake of the aftermath.

The reason that the Caucus assigns significance in this manner is because it is another verse in a long chapter in a longer book about altering Senate rules.
The filibuster of Ms. Halligan didn’t blow up on Twitter the way Mr. Paul’s impressive 12-hour stand did. But of the two, it was the one that could renew a feud over rules governing filibusters and how the Senate handles high-level judicial nominations — an issue that has torn the chamber for years.
Democrats are already in discussions on how to respond to the Halligan filibuster. They believe Republicans are dead set against confirming qualified Obama administration nominees to the United States Court of Appeals for the District of Columbia Circuit. They accuse Republicans of exaggerating their objections to Ms. Halligan to justify a filibuster under a 2005 agreement that short-circuited the last partisan showdown over filling judicial vacancies.
That deal, crafted by the famous Gang of 14, put its signatories on record as saying they would not block confirmation votes on appeals court judges without “extraordinary circumstances” as determined by each individual. While only members of the gang signed it, it became informal Senate policy and defused a crisis that had Republicans threatening to execute the “nuclear option” and bar filibusters against judicial nominees by a simple majority vote instead of with the 67 votes historically needed to change Senate rules.
It also led to President George W. Bush winning three appointments to the appeals court often considered a feeder to the Supreme Court, giving conservatives an advantage on the influential panel, which hears many federal-powers cases. It its current makeup, the court consists of four judges appointed by Republican presidents and three appointed by President Bill Clinton, with four vacancies — the most ever on that court.
Someone actually taking the floor to make a case, which certainly provokes discussion, is historically more important and definitely more rare, than a modification of the rules determining the balance of power within the Senate.
Democrats cried foul. The real reason she was blocked, they say, is that Republicans do not want to see the balance of power on the D.C. appeals court shifted. They say that Ms. Halligan was acting in her official capacity representing the State of New York, not as a jurist, and that Republicans have abandoned the extraordinary circumstances test engineered by the Gang of 14.
So very simply put, the Democrats accuse the Republicans of not acting in good faith.

For what it's worth I think calling it "the Silent Filibuster" works quite well as a contrast to the actual thing.

To be honest I cannot say if the filibuster should be part of American politics but as the rules stand it is impossible to remove so we must make the best of it.  In my opinion the best of it is that Senators of either party should have to take the floor, regardless of the cost to dignity.

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