Once again political activists are urging a minority of Senators to filibuster a judicial nominee, claiming that there are "extraordinary circumstances" justifying a filibuster. This time it is Caitlin Halligan of New York, who has been nominated for the D.C. Circuit:
http://www.nationalreview.com/bench-memos/284786/cloture-vote-halligan-nomination-ed-whelan
I have not reviewed the record with sufficient care to take a position on the merits of Halligan's nomination. Nonetheless, the last time I compared similar allegations against a nominee (Goodwin Liu) with the facts in the record, it was clear that the allegations were without merit. Facts, however, don't stop filibusters and Goodwin Liu is on the California Supreme Court instead.
I have, however, taken a position on filibusters. They are wrong and should stop. Professor Michael Gerhardt and I have proposed what we believe to be a bipartisan solution to this problem:
We would require an affirmative vote of at least 45 senators on a resolution to delay a judicial nomination until the next Congress. If there were such a delay, and the President were to resubmit the nomination to the next Senate, it would be subject to an up-or-down vote with no further delay. Our proposed compromise is a variation on an idea precisely 100 years old; the English Parliament Act of 1911 offered the same power -- delay instead of permanent blockage -- to an unelected House of Lords. We propose that a minority of the United States Senate should at most have similar power -- to delay but not block the will of the majority.
Today, I received an email from Curt Levy of the Committee for Justice asking me to support the filibuster of Ms. Halligan. My response was as follows:
Thank you for notifying me about this impending Senate vote.
As you know, I believe that great damage was done to the confirmation
process when Democratic senators filibustered nominees of President Bush
who otherwise would have been confirmed by a majority vote. The President
called for an up-or-down vote on all nominees, not because it was
politically expedient but because filibusters are wrong regardless of which
party controls the White House or the Senate. Although we have a new
President, and I am no longer a lawyer in the White House, I continue to
believe strongly that President Bush was right on this point. Filibusters
of judicial nominees have to stop.
All Senators should insist on an up-or-down vote on judicial nominees now
and in the future. All Republican candidates for President should make it
clear that, if elected, they will not tolerate filibusters of their
nominees, and that in the meantime similar respect should be shown to the
current President and his nominees.
Richard W. Painter