Update (6:33 p.m.): The Senate voted 50-40 to filibuster James Cole's nomination for deputy U.S. attorney general. Cole needed 60 votes to move forward to a final vote.
Last week, Senate Democrats broke an attempted filibuster of an Obama judicial nominee. Today, they'll try to do the same with one of the president's executive nominees.
Senators are scheduled to vote at 5:30 p.m. on whether to end debate on the nomination of James Cole for deputy U.S. attorney general. If Cole’s supporters succeed in getting at least 60 votes, then a vote on whether to confirm him would follow by Wednesday. If not, his opponents will have launched a rare successful filibuster of a nominee.
Republicans haven’t filibustered one of President Barack Obama’s executive nominees since February 2010. A handful of Democrats joined Senate Republicans then in blocking the confirmation of union lawyer Craig Becker to the National Labor Relations Board. A month later, Obama gave Becker a recess appointment.
None of Obama’s judicial nominees has been successfully filibustered, even as they have faced other types of delays. Last week, 11 Republicans joined Democrats to force a final vote on the nomination of Rhode Island trial lawyer John “Jack” McConnell Jr. for federal district court.
Cole, like Becker, is serving under a recess appointment. Senate confirmation would allow him to serve beyond this year as the Justice Department’s No. 2 official.
He has faced criticism on several fronts, including a 2002 column he wrote for Legal Times calling the Sept. 11 attacks “criminal acts” rather than acts of war. Sen. Jeff Sessions (R-Ala.), a former U.S. attorney, said in a floor speech today that Cole’s nomination “gives me great concern that the great department that I love and respect is getting off base.”
Cole pushed back against similar criticism at his confirmation hearing a year ago, when he said he understood the law of war. “It’s clear to me that anyone associated with al-Qaeda that’s captured can be treated as a prisoner of war, and we don’t provide lawyers or trials to prisoners of war. We hold them until the war is over,” he said then.