Rand Paul's Talking Filibuster Highlights Silent Filibuster Abuse

While Sen. Rand Paul’s talking filibuster of John Brennan as CIA Director was an improvement to ongoing silent obstructionism in the Senate, he and his colleagues should also drop their ongoing silent filibuster of judicial nominees.

March 8, 2013

Sen. Rand Paul’s (R-Ky.) use of the talking filibuster on March 6 was an improvement to the silent obstructionism that has paralyzed the Senate for years. Sen. Paul took to the Senate floor and actively engaged his colleagues in a constructive dialogue about civil liberties and the rule of law. He also garnered substantial media and public attention for his willingness to prevent the Senate from proceeding to a vote. In contrast to the ongoing silent filibuster of all Senate business, invoking the talking filibuster brings transparency and accountability to the legislative process.

Ironically, at the same time that Sen. Paul was debating the limits of executive power, he and his colleagues were silently filibustering Caitlin Halligan’s nomination to the U.S. Court of Appeals for the District of Columbia Circuit. This court has had four vacant judgeships since 2005, and President Obama’s nominees have languished in Senate confirmation purgatory for years. The disconnect is glaring: Using a talking filibuster to demand answers about the limits of executive national security power while at the same time silently disabling the judicial branch, which is central to enforcing constitutional limits on executive authority.

Indeed, most of the important legal challenges to national security are heard by the D.C. Circuit. As explained by former D.C. Circuit judge Patricia Wald, “[a]side from the U.S. Supreme Court, [the D.C. Circuit] resolves more constitutional questions involving separation of powers and executive prerogatives than any court in the country.” By silently filibustering appointments to this court, a minority of Senators is avoiding its responsibility to advise and consent on judicial nominations.  And by hamstringing the D.C. Circuit from realizing a full bench, the minority is hindering the effective consideration of the very sort of constitutional and national security questions that were the subject of the talking filibuster.

If Sen. Paul is sincerely concerned about preserving constitutional limits on the abuse of power, he and his colleagues should drop their silent filibuster of nominees to the D.C. Circuit.

Photo by Gage Skidmore.