There Is A Judicial Confirmation Crisis, And The GOP Is Causing It
In Tuesday night’s State of the Union Address, President Obama called on the Senate to “put an end” to the unprecedented obstruction of his judicial and executive branch nominees, insisting that “neither party has been blameless in these tactics.” He was right to call out the problem, but he was wrong that it’s a bipartisan issue. It’s fine for the president to be magnanimous, but the fact is only one party has systematically held hostage even the most basic tasks of governing in the hopes of making minor political gains. And that party is not the president’s.
The nominations crisis that we face today exists largely because it can easily fly under the radar—and the GOP politicians behind it know that. This Republican Congress’s intransigence has caused harm beyond the very public battles over the debt ceiling and tax cuts for millionaires. Under the unglamorous cover of judicial and executive branch confirmations, the Senate GOP has launched a campaign of strategic obstruction to prevent parts of the federal government from functioning at all.
This became clear in the relatively public battle to confirm Richard Cordray to head the Consumer Financial Protection Bureau. Senate Republicans admitted they had no problem with Cordray himself. Instead, all but two stated in a letter to the president that they would refuse to confirm him unless the new, congressionally created agency he was nominated to head was first substantially weakened. It was an unprincipled attempt to legislate via the Senate’s power of advice and consent, which the president rightly sidestepped by installing Cordray with a recess appointment.
But the Cordray nomination was just the tip of the iceberg. With far less public attention, the GOP has been decimating the nation’s courts, causing the judicial branch to face a historic vacancy crisis and Americans seeking their day in court to face unconscionable delays. This crisis is largely due to the chronic inaction of the Senate, which has been crippled by the Republican minority’s abuse of the chamber’s rules to block even consensus nominees from getting a yes-or-no vote.
More than 10 percent of all district and circuit court seats in the country are now or will soon be vacant, in what is the longest period of historically high vacancy rates in 35 years. Thirty-two of these open seats have been labeled “judicial emergencies” by the Administrative Office of the U.S. Courts. The term isn’t bureaucratic hyperbole. As the number of criminal cases surges—a 70 percent increase in the past decade—civil cases are necessarily put on the back burner, resulting in often years-long delays for Americans seeking justice in consumer fraud, copyright infringement, discrimination, civil rights, and other civil claims. Judges in their 80s and 90s have continued working to keep the system running. One told the Washington Post last year, “I had a heart attack six years ago, and my cardiologist told me recently, ‘You need to reduce your stress.’ I told him only the U.S. Senate can reduce my stress.”
Outside of the Senate, there’s near-unanimous agreement that the current pattern of obstruction needs to end. Legal groups and prominent judges across the political spectrum—including Chief Justice John Roberts—have urged that partisan politics be set aside for the good of the justice system. But instead, Senate Republicans have dug in their heels. Once being confirmed by the Judiciary Committee—usually without opposition—President Obama’s circuit court nominees have waited a staggering average of 136 days for a vote from the full Senate, compared to just 30 days for President Bush’s nominees at the same point in his presidency. For district court nominees, historically confirmed quickly and easily except under the most extraordinary of circumstances, the average wait after committee approval has been 90 days under Obama, in contrast to 22 days under Bush. Even among the nominees who were fortunate enough to be confirmed last year, more than a quarter were holdovers from 2010, denied votes from the full Senate until the year after they were approved by the Judiciary Committee.
Meanwhile the dry numbers of the vacancy crisis obscure its devastating impacts. Cases that require urgent resolution face grueling delays and occasionally put on indefinite hold. In Utah, Dave Calder’s two-year-old daughter died in 2005, when a gas can exploded inside his trailer, leaving him with severe burns over a third of his body. After he sued the maker of the faulty can in 2007, he had to wait two and a half years for a jury verdict. In Merced, California, 2,000 citizens who filed suit over toxic chemical contamination stemming from a 2006 flood are still awaiting resolution, and only one civil trial has been held in the matter.
Republicans in this Congress have again and again put the politics of obstruction over the good of the American people. President Obama was right to call out the problem, but he should have put a name to it. Americans deserve a Senate that, at the very least, does the basic job it was hired to do. When it comes to confirming nominees, it is clear which party has been shirking its duties.
By: Marge Baker, U. S. News and World Report, January 27, 2012
“GOP Globetrotting”: It Sure Looks Like A Recess
The Democratic Congressional Campaign Committee had a little fun at the GOP leadership’s expense this week, mocking the Speaker and Majority Leader for their recent globetrotting. As Dems see it, these guys have more pressing matters at hand.
With House Speaker John Boehner and Majority Leader Eric Cantor on separate overseas trips, Democrats are taking shots in their absence.
A new DCCC website — http://www.whereintheoworldisjohnboehner.com — pounces on the GOP leaders for their globetrotting during congressional recess, when Democrats say they ought be at work tax cut plan. Of course, globetrotting during congressional recess is a time-honored, bipartisan tradition, so the dig does lose some of its punch.
The House is scheduled to return next week and is expected to pick up where it left off — fighting over how to pay for a yearlong extension of the payroll tax break.
Boehner has been traveling in Latin America, with stops in Brazil, Colombia, and Mexico, while Cantor visited the Middle East, by way of Paris. (The image the Dems posted shows Cantor with a photoshopped beret in front of the Eiffel Tower.)
With Fox News and other Republicans raising a fuss last month over President Obama’s trip to Hawaii, I suppose it stands to reason that Dems are going to try to return the favor.
But I had a slightly different question: if the Speaker and Majority Leader are gallivanting around the world, doesn’t that mean Congress is in recess? Indeed, the L.A. Times report defended their travels by saying “globetrotting during congressional recess is a time-honored, bipartisan tradition.”
But I thought Republicans said Congress isn’t in recess?
For that matter, Eric Cantor’s own website told visitors this week that Congress “is not in session.”
It’s probably a tidbit to keep in mind during the debate over recess appointments.
By: Steve Benen, Contributing Writer, Washington Monthly Politica Animal, January 14, 2012
The House Republican Payroll Tax Cut Train Wreck
I recently brought my two-year-old son to see the National Christmas Tree, which resides on the Ellipse, just south of the White House. At 26 feet and 4 inches, it’s big but honestly somewhat underwhelming, having replaced a 42 foot spruce first planted during the Carter administration which was toppled by high winds in February (conservative metaphor alert!).
Fortunately my son didn’t pay any mind to the tree’s size, as he was held rapt by the model train sets arrayed around its base. He wasn’t even especially concerned that one of the trains had gone off its rails and lay on its side in the grass.
Liberal metaphor alert: Before the National Christmas Tree lay the National Train Wreck. Is there a more apt analogy for the Tea Party Congress?
Take the drama this week focused on extending the payroll tax cut and unemployment insurance. You know the contours: With overwhelming bipartisan support, the Senate passed a two-month extension in order to buy time to work out a longer-term agreement. House Speaker John Boehner reportedly called the bill a “good deal” and a “victory.” But by the next day, Boehner’s Tea Party-dominated caucus had yanked him back onto the reservation. The new party line was that a two-month extension of the payroll tax holiday was simply insufficient, that only a full-year extension, a version of which the House had already passed, would be acceptable. (This despite the fact that as recently as 2009 more than 50 House Republicans were saying the way to “effectively stimulate” the economy was a payroll tax holiday of … two months.)
Keep in mind that Republicans don’t actually favor a full-year extension. For example, Texas Rep. Pete Sessions, who chairs the House GOP’s campaign committee, told the Los Angeles Times in September that it is a “horrible idea,” adding that Republican House candidates would have no problem making the case for letting the tax cut expire altogether. It turns out they really do have a problem making that case, so last week they pivoted by passing their year-long extension, which had poison pill riders attached to it (drug testing for unemployment recipients, for example, because in this economy if you’re jobless it must be because you’re high). They apparently finally ran up the white flag yesterday, more or less accepting the Senate bill.
If this scenario seems familiar—House Republicans playing, as Florida GOP Rep. Thomas Rooney put it, “high stakes poker” in an effort to push their extremist agenda, with the stakes being the economy and people’s livelihood—it is. We’ve seen this scenario play out again (see the near-government shutdown in April) and again (recall the unnecessary debt ceiling crisis in August). The big difference is that even Senate Republicans are fed up with their wild-eyed, Tea Partying House brethren. “It angers me that House Republicans would rather keep playing politics than find solutions,” Massachusetts Sen. Scott Brown said after the House voted Tuesday to reject the Senate’s bipartisan bill. “Their actions will hurt American families and be detrimental to the fragile economy.” Nevada GOP Sen. Dean Heller said the House maneuvering “is about political leverage.”
Brown and Heller are the two Republican senators facing the toughest re-elections next year and so by necessity have a keen sense of what independent voters want. That they are taking such strong stances distancing themselves from the House reflects the fact that swing voters have had it with the Tea Party House lurching from one manufactured crisis to the next. The fact that House Republicans finally surrendered to political reality is almost irrelevant—just the fact of contriving another fight reinforces the public’s near-unanimous disapproval of Congress, its GOP members especially.
Only 11 percent of Americans approve of the job Congress is doing, according to a poll released this week by Gallup. That’s lower than any such figure since Gallup started tracking congressional approval in 1974. For the year, Congress has an average approval rating of 17 percent, also a historic low. A Pew Research Center poll also released this week showed that 50 percent of voters (another record) believe that this Congress has accomplished less than other recent Congresses.
And this isn’t a case of a pox on both parties. While Democrats are not liked, voters have a special distaste for the GOP, according to Pew. By almost two-to-one (40 percent to 23 percent) more voters blame Republican leaders than Democratic leaders for Congress’s lack of accomplishment. Voters also see the GOP as being more extreme (53 to 33 percent), while they say Democrats are more willing to work with the other side (51 to 25 percent) and are “more honest and ethical” (45 to 28 percent).
The big beneficiary of the Tea Party Congress’s tone deaf overreach, and specifically its incoherent approach to the payroll tax cut, has been President Obama. His job approval wallowed in the low 40s for the last few months, but polls released this week by ABC and CNN showed his rating ticking back up to 49 percent. “President Barack Obama’s approval rating appears to be fueled by dramatic gains among middle-income Americans,” CNN Polling Director Keating Holland said. “The data suggest that the debate over the payroll tax is helping Obama’s efforts to portray himself as the defender of the middle class.”
Defending the middle class is the kind of political sweet spot which wins elections. To the extent House Republicans are not only ceding that ground but practically inviting Obama to occupy it, they are victims of a train wreck of their own devising.
And the wreck in front of the National Christmas Tree? As I looked on, another pair of visitors climbed the fence and set the train back on the tracks. I like to think voters will do the same next November.
By: Robert Schlesinger, U. S. News and World Report, December 23, 2011
Proposed “Anti-piracy” Legislation Dangerous And Unconstitutional
The proposed “anti-piracy” legislation is dangerous and unconstitutional. Congress is contemplating two bills that proponents insist will shut down “rogue foreign websites” bent on wholesale intellectual property infringement. In reality, these bills won’t do much to curb online piracy. What they will do is balkanize the Internet, undermine Internet security, and introduce a new, unconstitutional scheme of speech regulation.
Both the Stop Online Piracy Act (SOPA) and its Senate counterpart, the Protect IP Act (PIPA), would empower the attorney general to create a blacklist of sites to be blocked by Internet service providers, search engines, payment providers, and advertising networks. In other words, U.S. citizens would have access to an Internet that looks distinctly different from the one seen by residents of, say, Japan or Australia.
Leading constitutional scholars have explained why this blunderbuss approach won’t pass muster under the First Amendment. Leading Internet engineers oppose the legislation because it will undermine international efforts to shore up online security—efforts the U.S. government has actively supported. A broad coalition of human rights groups has also come out against the legislation, well aware of the contradictory message it sends about online censorship.
We’ve seen where this can lead: Over the past year, Immigration and Customs Enforcement has been obtaining court orders authorizing the seizure of domain names. The seizures are supposed to be directed at infringing sites, but perfectly legal sites have been caught in the net. And when those legal sites have tried to get their property back, they’ve been met with delays and obfuscation. For example, when the founder of a popular music blog tried to follow the government’s bewildering procedure for retrieving his domain names, the government abused the process, seeking secret extensions and declining to cooperate with the blogger to get the matter resolved. Finally, the government dropped the case, with no apologies.
But it gets worse: Private actors can also get in on the act. If an intellectual property rightsholder thinks a site is “promoting” infringement, that party can go to court to seek an order forcing payment processors and ad services to choke off financial support to the site.
The payment providers won’t be able to fine-tune their response so that only infringing sites are affected, which means an entire business could be under assault. Moreover, there are vigilante provisions that can easily be read to grant immunity for cutting off a site if there is “credible evidence” that the site promotes infringement.
For over a decade, we’ve had a system in place that gives rightsholders effective tools for fighting online infringement, while creating space for online innovation, economic growth, and creativity. These bills would rewrite the rules and give government and big content providers new powers to regulate the Internet, with little regard for the collateral damage it would cause.
SOPA and PIPA have sparked an explosion of opposition, including Democratic and Republican lawmakers, progressive and conservative public interest groups, technology companies and investors, constitutional scholars, and human rights groups (who know a plan for censorship when they see one). It’s been called a “geek lobby,” but you don’t need to be a geek to see that this legislation is a profoundly bad idea.
By: Corynne McSherry, Published in U. S. News and World Report, December 21, 2011
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