This week, Republicans successfully filibustered President Obama’s nomination of Caitlin Halligan to the U.S. Court of Appeals for the D.C. Circuit — a big deal, because this court is often seen as a testing ground for future Supreme Court nominees. Halligan is eminently qualified for the job, but the National Rifle Association — and Republican senators — opposed her partly because she’d worked on a court case against the gun industry, something that apparently weighed more heavily on them than any desire to see the federal courts function.
This prompted Sen. Richard Durbin of Illinois, a member of the Democratic 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 Democrats continue to live with the consequences of the weak filibuster reforms they passed this year. If reformers such as Jeff Merkley, D-Ore., and Tom Udall, D-N.M., had gotten their way, the filibuster of Halligan might have failed.
As you might 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 filibustering party would have had to muster 41 votes to keep it going, rather than requiring the majority party to muster 60 votes to end it.
The Senate voted 51 to 41 to end the Halligan filibuster, well short of the 60 votes needed. Harry Reid switched his vote to “no” for procedural reasons.
In other words, Republicans gathered only 40 votes against the Halligan nomination, partly due to absences from the Senate. (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.
Yes, if Republicans had needed 41 votes, perhaps one or more of the absent senators would have shown up. But the basic point still stands: Reform would have made this sort of obstructionism harder and put more pressure on the minority to sustain it.
In other words, this is a case in which the reformers’ provision would have functioned exactly as it was intended. With senators absent, it would have been 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, Democrats. In the Senate, nothing is changing.
Excerpted from washingtonpost.com/blogs/plum-line