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Judging President Obama's Nominees by Senator Obama's Standard

5:08 PM, Dec 6, 2011 • By ADAM J. WHITE
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Today, Senate Republicans succeeded in continuing a filibuster of Caitlin Halligan's nomination to the U.S. Court of Appeals for the D.C. Circuit. The cloture vote on Halligan (who previously served as New York's solicitor general) fell six votes short of the necessary sixty.

No matter your position on Halligan's fitness for office, it's hard not to chuckle at President Obama's reaction:  

... her nomination fell victim to the Republican pattern of obstructionism that puts party ahead of country. Today’s vote dramatically lowers the bar used to justify a filibuster, which had required “extraordinary circumstances.” The only extraordinary things about Ms. Halligan are her qualifications and her intellect.

To be clear, President Obama is re-writing Senate history; today's vote did not "lower the bar." There is no rule that judicial nomination filibusters require "extraordinary circumstances." While it's true that the Bush-era "Gang of 14" agreement employed that standard for filibusters then pending, that agreement expired, by its own express deadline, in 2006. (Ed Whelan helpfully explained this last month.) 

But even setting the president's historical fiction aside, his statement today is a laughable departure from his own (short) record as a senator. Even when the Gang of 14 agreement was in effect, he opposed cloture on at least one (ultimately successful) nomination: Janice Rogers Brown.

His record on the Brown nomination is particularly illustrative. In opposing the clearly qualified nominee, then-senator Obama stressed that D.C. Circuit nominations deserve special scrutiny:

This is a special court. It has jurisdiction that other appeals courts do not have. The judges on this court are entrusted with the power to make decisions affecting the health of the environment, the amount of money we allow in politics, the right of workers to bargain for fair wages and find freedom from discrimination, and the Social Security that our seniors will receive. It is because of this power that we deserve to give the American people a qualified judicial nominee to serve on the DC Circuit.

He continued by asserting that the "test of whether a judge is qualified to be a judge is not their intelligence. It is their judgment." And for evidence of Judge Brown's alleged lapses in "judgment," Obama focused exclusively of her decisions in "cases dealing with a woman's right to choose, worker protections, punitive damages, or discrimination," as well as her decision in cases involving property rights, and her outside speeches.

Well, as it happens, that is precisely the type of analysis that the senators applied today (and which President Obama, in turn, criticizes.) Halligan's views on national security (an important component of the D.C. Circuit's caseload), gun ownership, abortion, affirmative action, and other issues convinced Republican senators to withhold their constitutional advice and consent.

President Obama isn't actually upset that senators changed the rules. He's just upset that they applied the same old rules—rules that Obama himself asserted vigorously—against his nominee.

Adam J. White is a lawyer in Washington, D.C.

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