Once again, a solid Senate majority isn't enough to confirm a judge. Plus, George Will tells Watergate tall tales

Really, you think that, just because Caitlin Halligan has a solid Senate majority wanting to vote to confirm her nomination to the DC Circuit Court, she should be confirmed? Where have you been?

"I don't think any reasonable person would find anything about Caitlin Halligan that would constitute 'extraordinary circumstances. The idea that a position that you took as a public official on behalf of your client amounts to an extraordinary circumstance was pretty astonishing."

-- White House counsel Kathryn Ruemmler,
to The New Yorker's Jeffrey Toobin

by Ken

Nevertheless, because the Right's view is that whatever it can get away with is all right, and obstruction is one of the most reliable things it can bet away with, it appears that Caitlin Halligan's nomination to the DC Circuit Court, generally regarded as the second most influential court in the country behind only the U.S. Supreme Court itself, can't go forward. Not because she couldn't command a comfortable Senate majority for her nomination, but because last week -- "on the same day as Rand Paul's celebrated filibuster against drone strikes last week," as Jeffrey Toobin points out in a newyorker.com blogpost, "For Obama's Judges, It's Already Late" -- Senate Republicans marshaled 41 votes in opposition to bringing Halligan's nomination to the floor for a vote.

The modern-day Senate requirement that anything opposed by right-wingers requires 60 votes in the Senate, says Toobin, "has taken an enormous toll on President Obama's judicial appointments."

This was the second time that Halligan received majority support, but, because she never passed the threshold of sixty, her nomination now appears doomed. And so, in the fifth year of his Presidency, Obama has failed to place even a single judge on the D.C. Circuit, considered the second most important court in the nation, as it deals with cases of national importance. (Its judges -- like John Roberts, Antonin Scalia, Clarence Thomas, and Ruth Bader Ginsburg -- also often wind up on the Supreme Court.) The D.C. Circuit now has four vacancies out of eleven seats.

"Halligan is impeccably qualified to be a judge," Toobin writes.

[S]he's a career government lawyer from New York -- and she enjoyed broad support among members of both parties in the legal community. Opposition to her focused almost completely on a single brief she wrote for her boss, then-New York Attorney General Andrew Cuomo. Cuomo had sought to make gun manufacturers legally responsible for some of the violence in New York, a position that the National Rifle Association opposed. The N.R.A. punished Halligan for doing her job for New York, and the Senate Republicans followed.

The business about "extraordinary circumstances" referred to by White House counsel Kathryn Ruemmler in the quote atop this post relates to the supposed bipartisan "truce" on Senate confirmation of judicial nominees dating back to 2005. Toobin again:

During the last Bush Administration, Republican Senators grew so frustrated with what they called Democratic obstruction of judicial nominees that they threatened to change Senate rules to limit filibusters on judges. In 2005, the bipartisan "Gang of Fourteen" Senators announced a truce. Democrats agreed to allow votes on Bush's nominees in "all but extraordinary circumstances," and they kept to the deal. Bush's second-term appointees (including two to the Supreme Court) proceeded without obstruction. At least technically, the Gang of Fourteen compromise is still in effect. But Republicans have essentially ignored it -- as the Halligan filibuster demonstrated.

(And let's not forget the point made recently by The New Yorker's Hendrik Hertzberg that the transformation of the filibuster into a 60-vote requirement in the Senate is flatly unconstitutional.)

Of course the life forms Chimpy the Prez was stuffing into the federal judiciary, who were human only in the most technical biological sense, were appointed for either their unrelenting hostility to the Constitution or their screaming ignorance -- or, of course, wherever possible, both. They were appointed for the purpose of subverting and perverting constitutiona law and decency. They should, by and large, have been housed in quarantine cages.

Howie and I have written a fair amount about the Senate Republicans' policy of judicial obstruction; Jeffrey Toobin has written a lot about it. "Judicial appointments," Toobin writes, "represent one of the great missed opportunities of the Obama Presidency."

In his first term, especially in the first two years, Obama himself bore much of the blame for this. When Democrats controlled sixty Senate seats, Obama was slow to nominate lower-court judges, and his moment of greatest leverage passed. But, since the 2010 midterm elections, Republicans have been at fault, almost entirely. Most nominees are not formally stopped, as Halligan was, but rather are delayed and delayed. Bush's nominees got votes within weeks; Obama's take months, even for uncontroversial selections. William Kayatta, Jr., nominated to the First Circuit, waited three hundred days for a vote and then received eighty-eight votes for confirmation. Republicans delay because they can. "The Republican Senators are not punished for it, and they are rewarded by their base," a senior administration official said.

We all know perfectly well that the next time we have a Republican president, a stream of genetic mutants will be blasted from the White House to the Senate for confirmation to all the positions that require Senate approval, and the moment any word of oppposition is heard, the Great Right-Wing Noise Machine will be ratcheted up to deafening level about the nefariousness of the opposition to our constitutional system. And they won't just make noise; they'll enforce their will. If it means what they themselves called "the nuclear option," which is to say decommissioning the filibuster, I think it's safe to say they'll do it.

There is, we have to bear in mind, nothing remotely symmetrical about our current political spectrum. All tactics on the Right are deemed legitimate and appropriate, without even the most minimal obligation to reality or truth, thanks to the right-wing Right to Lie. And against that, what tools are left for a fight?

Toobin asks the obvious question: "What, if anything, can Obama do?"

Given the rules of the Senate, probably not much. (Earlier this year, Senate Democrats backed away from imposing limits on filibusters.) Because the Senate schedule operates by unanimous consent, Republicans must agree to take votes on judicial nominees, and they have been slow and stingy in doing so, even when they have no plans to filibuster or even to vote no. For example, eighteen district court nominees, all uncontroversial, are currently awaiting votes on the floor. All will be confirmed eventually, but Mitch McConnell, the Senate Minority Leader, parcels out agreements to take votes just one or two judges at a time. "We are not hearing any opposition to the district court nominees," Ruemmler said. "The process is just too slow."

Obama himself, a former teacher of constitutional law, has said little about judicial nominees during his Presidency. (Given the way Republicans feel about him, Obama might just inflame the issue further if he spoke out.) So Ruemmler and the small group of people committed to the issue in the Administration will continue their strategy of filling the pipeline with nominees and hoping for votes. In the new few weeks, Sri Srinivasan, a deputy solicitor general, will have his Senate Judiciary Committee hearing for his nomination to the D.C. Circuit. Harry Reid, the Senate Majority Leader, will soon attempt to get a vote for Patty Shwartz, a nominee for the Third Circuit. It's still early in Obama's second term, but, given the pace at which judicial nominations proceed, it's actually already pretty late.

SPEAKING OF THE RIGHT-WING RIGHT TO LIE

If you haven't already, you have to read "Revisionist history on Watergate," the blistering reply by Richard Ben-Veniste in today's Washington Post to an astonishing fabrication by infamous WaPo fabricator George Will. In Will's stupefyingly dishonest retelling, the hero of Watergate turns out to be none other than then-Solicitor General Robert Bork, No. 3 man in the Nixon Justice Department, who at the president's behest performed the flagrantly illegal act that two decent men, the attorney general and deputy attorney general, quit rather than do.

At the time of the Watergate scandals Ben-Veniste was chief of the Watergate Task Force of the Watergate Special Prosecutor’s Office, and he begs to differ.

Will's acceptance of Robert Bork’s self-serving claim to have been the "protector" of the Watergate investigation is a mischaracterization of history. Bork, then Nixon's solicitor general, famously carried out the president's order to fire special prosecutor Archibald Cox after Attorney General Eliot Richardson and Deputy Attorney General William Ruckelshaus [right] refused in what became known as the Saturday Night Massacre.

Bork's assertion that by firing Cox he acted to protect the ongoing investigation of Watergate crimes is akin to the Army major's claim during the Vietnam War that "it became necessary to destroy the town to save it." Secret recordings reveal that well before the controversy surrounding the subpoenaed White House tapes, Nixon discussed with his chief of staff, Alexander Haig, his intention to fire Cox. This was part and parcel of the president’s continuing effort to obstruct the Watergate investigation.

Bork, recently arrived from the Yale Law School faculty, lent his academic credibility to the attempt to justify the firing -- which federal judge Gerhard Gesell later ruled was plainly illegal, as Cox could be fired only for "extraordinary impropriety." (Bork later stipulated that Cox had committed no such impropriety.) The grateful president, Bork recently wrote, promised to nominate him to the Supreme Court upon the next vacancy. . . .

Oh, there's more, and you should read it all, but for our immediate purposes this should be enough to make the point. Really now, allowing a man who built his career on the commission of a crime ordered by a career criminal who then reward him with a nomination to the Supreme Court -- well, really! Surely there are limits!

Well, as I was musing recently, when it comes to right-wing deception, we still haven't found out what, if any, those limits might be. (As I wrote in February 2012 in connection with Virginia Gov. Bob McDonnell's tightrope walk: "Being a rising right-wing pol means finding that line between the merely preposterous and the too-preposterous.")

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