Senate Democratic leaders have engaged in preliminary discussions about how to address Republican procedural obstruction, according to a senior Democratic aide, reflecting an awareness that key administration and judicial vacancies might never be filled, and that a watered-down rules reform deal the parties struck early this Congress has failed.
“The general agreement was that Republicans would only filibuster nominees in the case of extraordinary circumstances, and once again Republicans are expanding the definition of that term to make it entirely meaningless,” the aide said.
The source said conversations are still too preliminary for Democrats to lay out publicly potential avenues of recourse just yet. And the last thing leaders want is to create the expectation that they will change the filibuster rules in the middle of the current Senate session. But they are occurring in the wake of a series of GOP filibusters of top nominees, including a cabinet secretary (Chuck Hagel), the CIA director (John Brennan), and a federal judicial nominee (Caitlin Halligan) whom Republicans have effectively blocked from confirmation to the D.C. Circuit Court of Appeals for years.
Halligan is a career government lawyer with broad support among leading conservative and liberal lawyers. But Republicans have redefined “extraordinary circumstance” in her case to mean her authorship of a single brief for her now-former boss, then-New York Attorney General Andrew Cuomo, which earned her powerful enemies at the National Rifle Association.
“I don’t think any reasonable person would find anything about Caitlin Halligan that would constitute ‘extraordinary circumstances,’” Kathryn Ruemmler, the White House counsel, told New Yorker legal writer Jeffrey Toobin. “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.”
Though the Hagel and Brennan filibusters ultimately fell, and merely delayed the inevitable, they violated the spirit of the bipartisan rules reform agreement reached in January, which was effectively intended to allow the Senate leader to expedite normal business through the Senate.
The Halligan filibuster is something else entirely — an instance of Republicans preventing a federal court from functioning as intended rather than approve non-controversial liberal nominees to fill its vacancies.
The filibuster of Richard Cordray is a more troubling example of the same phenomenon. Republicans have acknowledged his impeccable credentials, but have refused to confirm him or anyone else to direct the Consumer Financial Protection Bureau until Democrats agree to weaken the agency through legislation the GOP can’t pass on its own.
Obama recess-appointed Cordray early last year. But he’s on borrowed time. His appointment expires at the end of 2013 — possibly earlier if the Supreme Court has anything to say about it — and without a director, the CFPB will lose several of its regulatory powers automatically.
Brian Beutler is TPM's senior congressional reporter. Since 2009, he's led coverage of health care reform, Wall Street reform, taxes, the GOP budget, the government shutdown fight, and the debt limit fight. He can be reached at email@example.com.