That a mainstream Democratic nominee can’t receive a vote from the Senate while someone who believes the modern regulatory state to be unconstitutional can be confirmed conclusively illustrates the futility of gentlemen’s agreements to reform Senate procedures. Brown was confirmed under the inexplicably hyped “Gang of 14” agreement that was supposed to reduce filibusters of judicial nominees. Under the Gang of 14 deal, filibusters of judicial nominees were supposed to take place only under “extraordinary circumstances.” But, as is so often the case, this deal was a con, with Senate Democrats playing the sucker. After Democrats allowed even some of Bush’s most radical nominees (including Brown) to be confirmed, Republicans have responded by ratcheting up their obstructionism. In 2005, a judge committed to constitutional views that have been discredited for 80 years and considers the New Deal “socialism” did not constitute “extraordinary circumstances.” In 2013, an extremely well-qualified nominee having views closer to those of the president and a majority of the Senate than of the Senate’s minority party constitutes an “extraordinary circumstance.”
If any Democrats are particularly to blame for the filibuster, it’s not President Obama but the key Senate Democrats who continue to put their parochial interests ahead of party and country by refusing to seriously reform the filibuster. As was obvious at the time, January’s filibuster “reform” deal was entirely worthless. Mitch McConnell is not about to adhere to informal promises, and to his credit he’s perfectly transparent about it. Until a Senate Democrats become serious about majority rule in their institution, things like the failure of the Halligan nomination will continue to happen. And while we’re waiting, the Republican-dominated D.C. Circuit will continue to to things like eviscerate the president’s recess appointment power. This cycle of dysfunction needs to be broken by allowing Senate majorities to actually govern, and allowing the president to properly staff the executive and judicial branches.
The remarkable thing about the “Gang of 14” is that it wasn’t just centrist pundits but a lot of conservatives who didn’t seem to understand how badly the Democrats got rolled. McCain et al. got some of Bush’s most reactionary nominees confirmed in exchange for absolutely nothing — but were criticized by a lot of conservative pundits for it. It goes without saying that every surviving Republican member of the Gang of 14 voted for the Halligan filibuster.