Caitlan Halligan Lost, and So Did You

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Senate Republicans blocked yet another qualified judicial nominee even as federal courts are dangerously in need of judges

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If it were possible to strip the political varnish from the judicial nomination process, if we reduced the dark art down to its elemental tones, what we would see is both simple and maddening. 1) Our nation doesn't have enough federal judges working on cases. 2) The result is a growing backlog in the administration of justice that impacts the lives of millions of Americans. 3) There is a limited supply of capable, honest lawyers who are willing to take a pay cut, not to mention endure the background checks, to work as life-tenured jurists. 4) The Senate is unwilling to confirm dozens of these dedicated people out of partisan spite.

The latest victim of this self-defeating practice is Caitlin Halligan, an eminently qualified lawyer, a Princeton and Georgetown Law graduate, whose nomination to the D.C. Circuit Court of Appeals was blocked Tuesday by a filibuster threat by Senate Republicans. Instead of voting on the merits of Halligan's nomination-- which has languished in the Senate since President Obama submitted her name to the chamber in September 2010 -- the cowards in Congress instead dispatched it with a cloture vote. Thus was the nation, and so many future litigants, deprived of the intellect of a worthy judge. 

Remember the Gang of 14, the so-called "moderates" of both parties who pledged years ago to support each other's judicial nominees absent "extraordinary circumstances"? Won't see them no more. Turns out it was the Republicans and not the Democrats who broke the peace. Halligan was a mainstream choice, as much so as Samuel Alito or John Roberts anyway, who earned the highest possible qualification rating from the American Bar Association. Already the Obama administration is lagging far behind its predecessors in getting judicial nominees to the bench. And now the Republicans are digging in.

There are two quick points to make of the Halligan "vote." First, as the White House duly noted Tuesday afternoon, Republican senators now have lowered the standard for what constitutes "extraordinary circumstances" (the Gang of 14's deliciously ambiguous phrase) that would warrant rejection. In Halligan's case, The Washington Post reported, it was her participation in a lawsuit against gun manufacturers that evidently did her in. Either that or it was her position on detainee rights, which is consistent with Supreme Court precedent (but not current Senate politics).

Second, and perhaps more ominously, was the notion injected into this debate that somehow it is good policy and practice to leave the nation's most important federal circuit court grossly understaffed. The D.C. Circuit is the hub of the wheel below the Supreme Court. Because it is based at the seat of federal power it takes on most of the important cases involving federal rights and responsibilities. The "good enough for government work" argument in play leading up to Tuesday's vote simply isn't good enough. When I last wrote about judicial vacancies, in August, there were 88. Today, there are 80 with 47 pending nominations.

Some of you might be thinking about now, but what about Miguel Estrada? He was the nominee of President George W. Bush whose confirmation to the same circuit was blocked years ago by Senate Democrats. Aren't the Republicans simply doing to a Democratic president what Democrats have done to Republican presidents? I hate this argument for many reasons, not the least of which is that it masks the truth of the matter, which is that both sides in the Senate are failing the American people. It's a bipartisan lament, so how about this deal: Fill the benches first and then you can act like spoiled brats.

And Estrada? He was disappointed today because he supported Halligan's nomination. He's clearly moved on. But the politicians can't. They won't. The American people lose when highly capable people are turned away from government because of the need to fill the B-roll of a campaign attack ad. We lose when we allow our courts to languish with empty benches and long dockets. We lose when we pretend on the floor of the Senate that people like Halligan would dishonor their judicial oaths. Like Estrada, Halligan will move on after this ordeal. She's still a superstar. It's just the rest of us, who are not, who are left to suffer with this Senate.

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Andrew Cohen is a contributing editor at The Atlantic. He is a legal analyst for 60 Minutes and CBS Radio News, and a fellow at the Brennan Center for Justice.

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