Senate Republicans – already being condemned for their unprecedented obstruction of highly qualified judicial nominees with strong bipartisan support – today responded to that criticism by escalating their partisan obstruction to even more extremes. Today, after finally overcoming the four-month obstruction of an unopposed circuit court nominee, Senate Democrats were forced to file cloture on the nomination of an unopposed district court nominee, one who worked for and has the support of Bush Attorney General Michael Mukasey: Jesse Furman, nominated to the Southern District of New York.
It would be hard to overstate just how absurd this is. When George W. Bush was president, Democrats routinely approved District Court nominees, frequently without even a recorded vote.
Adding to the absurdity of the filibuster, Republicans have given no reason to vote against Furman's confirmation. He is a respected lawyer who has devoted his legal career to public service, serving under both Democratic and Republican administrations. After law school, he clerked for Justice David Souter, Judge Michael Mukasey (a Reagan nominee to the Southern District of New York) and José A. Cabranes (a Clinton nomine to the Second Circuit). He worked as an Assistant U.S. Attorney in the Southern District of New York during the George W. Bush Administration. For two years during that time, he was detailed to work as Counselor to Mukasey, who had by then become Attorney General under President Bush. In 2009, he returned to the Southern District of New York to become Deputy Chief Appellate Attorney in the U.S. Attorney's Office.
One might think Mukasey's strong support for the nomination would give Republicans reason not to filibuster. He wrote this of Furman: "All I can hope to add is my own belief that he is a person to whom one can entrust decisions that are consequential to the lives of people and to the general welfare of the populace, with confidence that they will be made wisely and fairly ... and I urge that he be confirmed."
Mukasey is not alone. The ABA has analyzed his record and found him qualified. A unanimous Judiciary Committee agreed.
There are currently six judicial vacancies in the Southern District of New York. Furman's nomination to fill one of those vacancies has been pending on the Senate floor for five months now.
This latest filibuster is an outrage. Republicans haven't just moved the goal posts. They've moved the entire stadium. The American people deserve so much better than this.
Apparently recognizing the severe and possibly permanent damage they did to the judicial nominations process – and the entire U.S. court system – by filibustering Caitlin Halligan, Senate Republicans are running to the press to do damage control. Two days after they blocked consideration of a highly qualified, mainstream appeals court nominee for purely political reasons, they are claiming that they did nothing of the sort. Still covered in soot from the bomb they set off, they are painting themselves as peace-loving senators treating their Democratic colleagues respectfully.
In what might be mistaken for an April Fool's Day article, Roll Call has a piece trumpeting the GOP's claim that they are following the "golden rule" on judicial nominations, treating nominees supported by Democrats with as much respect as they would want theirs to be treated.
Graham and other Senate Republicans said they expect more of Obama's judicial nominees to be approved by the Senate next year, as long as the nominees' views are within the mainstream and they are properly vetted.
Then why have the Senate Republicans continued to slow-walk every nomination that comes before them? Even those with no opposition at all are forced to wait for months before the GOP allows them a floor vote. The contrast with how quickly President Bush's committee-approved nominees were given a floor vote is shocking. An average 22-day wait for President Bush's district court nominees has ballooned to 90 for President Obama. For circuit courts, Senate Republicans have forced the average wait from 30 days (for Bush) to 137 (for Obama).
The Senate has, for the most part, continued to adhere to the [2005 Gang of 14] agreement. Only two judges have been filibustered since 2005: Goodwin Liu and Halligan ...
Adhering "for the most part" is a cynical attempt to put a positive spin on "not adhering." The filibusters of Liu and Halligan were in clear violation of the agreement. And it's not "the Senate" that has violated the agreement, it's Senate Republicans.
The article conveniently overlooks the aggressive Republican effort to filibuster district court nominee Jack McConnell earlier this year, an effort that garnered the support of the majority of the Republican caucus. It also overlooks the fact that Democrats have had to file cloture on seven of Obama's judicial nominees in order to break through GOP obstruction. That some of those were ultimately confirmed overwhelmingly, sometimes even without any opposition, shows the cynical nature of the Republicans' misconduct.
But there are even more Republican filibusters than that. As a 2011 Congressional Research Service report states, "Cloture may be sought when no filibuster is taking place, and filibusters may occur without cloture being sought." Democratic leadership has sought to bring dozens of qualified, unopposed nominees to the floor in a timely manner, only to have them blocked for months by Republican leadership's refusal to agree. Just because Majority Leader Reid has not filed a cloture petition on them does not mean that they are not being filibustered.
Currently, there are 21 judicial nominations pending on the floor, 19 of them with overwhelming bipartisan support. There is no reason not to vote on them. If Republicans want people to do anything other than laugh at articles like this, they should end their filibusters and allow votes on them all.
Sen. Mike Lee (R-Utah) also said the Halligan vote was no watershed. Lee said the GOP treads lightly when it comes to filibustering judicial nominations, in part, for fear of antagonizing Democrats in the event that Republicans win the majority.
"We don't want to abuse [the filibuster of judicial nominees] because abusing it is wrong," Lee said. "But also there are consequences attached to abusing it and that is [another reason] why we are not abusing it."
"Abuse" is exactly the right word to describe the ongoing Republican obstruction of judicial nominees. Saying that black is white does not make it so.