A filibustered judicial nominee withdraws

New York lawyer Caitlin Halligan, who was first nominated to the federal appeals court in Washington, D.C., almost 2 1/2 years ago, has asked President Obama to withdraw her nomination. As The Times noted in an editorial today, Halligan was the victim of a Republican filibuster in which all but one of the GOP senators voting refused to cut off debate on her nomination. Had the nomination proceeded to a floor vote, she almost certainly would have been confirmed.

Liberals and Democrats will decry the sandbagging of Halligan, who was accused by Republicans of extremism because she once filed suit against gun manufacturers. But the way she was treated also should disturb Republicans and independents who believe: a) that filibusters of judicial nominees undermine the constitutional principle of “advise and consent”; and b) that senators should accord considerable deference to a president’s judicial nominees, even if they aren’t their philosophical cup of tea. As Sen. Lindsey Graham (R-S.C.) said when he voted to confirm Justice Sonia Sotomayor, “Elections have consequences.” (Graham ignored his own advice by joining in the filibuster against Halligan.)

The latter idea is controversial in both parties, and it explains why Democrats also have blocked judicial nominees from the other party for fear they might end up on the Supreme Court. The most notorious example is Miguel Estrada, a Honduran immigrant who was nominated by President George W. Bush in 2001 to the same court Halligan wanted to join, the U.S. Court of Appeals for the District of Columbia Circuit. Estrada, who Democrats feared might be tapped as the first Hispanic Supreme Court justice, was filibustered and eventually withdrew from consideration in 2003.

Sometimes unjustly blocked nominees get a second chance. In 1992 President George H. W. Bush nominated John G. Roberts Jr. to the D.C. Circuit. As Joan Biskupic of Reuters recently wrote in a profile of the chief justice: “Roberts was 37. That time around, then-Senate Judiciary Committee Chairman Joe Biden, a Democrat from Delaware, declined to schedule a hearing on his nomination.” Roberts was nominated again to the D.C. Circuit by the second President Bush, and confirmed, before ascending even higher. In 1999, President Clinton nominated another Harvard Law School superstar, Elena Kagan, to the D.C. Circuit, but she never received a hearing from Senate Judiciary Committee Chairman Orrin Hatch (R-Utah). She too had the last laugh.

Whether Halligan will have a second shot is debatable. She’s only 46, but she couldn’t get a vote in a Democratic-controlled Senate and antagonized a powerful lobby, the National Rifle Assn. But the point is that she deserved an up-or-down vote this time around.

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