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“They Had A Choice”: Did Frustrated Mainstream Republicans Help Pull The Nuclear Trigger?

The big mystery of today’s majority-imposed rules change in the Senate is: What happened to the deal-making Republicans?

There’s nothing much to figure out on the Democratic side. It was clear to most observers that the three-seat blockade of the D.C. Circuit Court was solidly over the line separating Democratic senators’ individual preference for maintaining the filibuster and their party interest in seating a Democratic president’s choices for the federal bench. Democrats believed that they had no choice but to proceed.

Republicans, however, certainly did have a choice. After all, in the short run, they’re clearly worse off by this change than they would be had they used the filibuster far more selectively. That was enough to get them to compromise the last time this happened. So why didn’t they hold back again?

One possibility is that they simply miscalculated, believing that Senate Majority Leader Harry Reid (D-Nev.) was bluffing. If that was the case, however, they could have backed off at the last second.

A second possibility is that they really wanted to eliminate the filibuster, and that they believed that the cost to the Democrats for pulling the trigger was great enough that it was worth the potential three years of majority-confirmed President Obama nominees. That’s possible, although it’s very hard to believe that voters will care at all, and Republican arguments (court-packing!) did not appear designed to appeal to those who might have been willing to condemn Democrats for a “power-grab.”

So here’s a third possibility. The problem with the summer compromise is that it was horrible for deal-making Republicans. The deal essentially said: Republicans will continue to filibuster nominations, but will supply enough votes for almost all of them so that the filibusters will be defeated. But that meant that in practice a handful of Republicans were forced to tag-team their votes, making sure that Democrats always had 60. What’s more, the shutdown fight — which began right after the Senate deal was struck — revealed that radical Republicans led by Sen. Ted Cruz (R-Tex.) were eager to scapegoat those same deal-making Republicans. That raised the cost of the executive branch nominations agreement for tag-teamers such as Sens. Lamar Alexander (R-Tenn.), Bob Corker (R-Tenn.) and John McCain (R-Ariz.). In other words, the summer deal might or might not have been stable, but it certainly couldn’t hold in a world in which the majority of Republican senators are looking for ways to separate themselves from mainstream conservatives, and then using that separation to attack them.

Those deal-making Republicans did have another option; They could have just abandoned the radicals. But over what principle? After all, the situation here is that it’s the radicals, not the mainstream conservatives, who want to hold up all these nominations. One way to look at what happened today is that the deal-makers were getting out of the way and allowing the radicals to lose. If the outcome is the same — Obama’s judicial picks get confirmed — then why should the deal-makers ask for the blame for it?

We don’t know yet, and perhaps we won’t, but my guess is that the way Cruz and other Republican radicals acted during the shutdown is what explains the difference between a successful deal in the summer and today’s nuclear action.


By: Jonathan Bernstein, The Washington Post, November 21, 2013

November 22, 2013 Posted by | Federal Judiciary, Filibuster | , , , , , , , | Leave a comment

“Judicial And Legislative Nullification”: Republicans Have Only Themselves To Blame For Harry Reid’s “Nuclear Option”

If the Founding Fathers could see the Senate after today’s vote by Senate Democrats to prohibit filibusters of most presidential appointments, they would, of course, be appalled.  ”What are all these women doing here?” they would ask. But as for the filibuster reform, they’d wonder what all the fuss was about.

There is no mention of the filibuster in the Constitution. Until very recently in U.S. history, filibusters were rarely used. Half of all filibusters of executive-branch nominees have occurred under President Obama, and it was obvious from the first day of his presidency that Republicans would use the tactic to hamstring the government and block Obama.

Senate Majority Leader Harry Reid, then, had every right to push for changes to filibuster rules four years ago, when GOP use of the filibuster was already out of control. But instead, Reid offered deal after deal to Senate Republicans. They accepted some. They honored none. Instead, the delaying tactics have continued. Frequently they have been used to block the implementation of laws the Senate had passed — the two-year filibustering of the first head of the Consumer Financial Protection Bureau, for example, just because Republicans didn’t like the law. And Republicans have paired judicial nullification with legislative nullification, blocking a record number of Obama’s judicial appointees — a power the Constitution actually mentions, unlike the filibuster — for no real reason other than that they were Democratic nominees, not Republican ones. (Democrats were guilty of this under President George W. Bush as well, it must be noted, and deserve criticism for that, even if the number of filibusters was lower.)

The result, as political scientist Gregory Koger summed up nicely for my Post colleague Ezra Klein, has been the solidifying of a new order in the U.S. system of government:

Over the last 50 years, we have added a new veto point in American politics. It used to be the House, the Senate and the president, and now it’s the House, the president, the Senate majority and the Senate minority. Now you need to get past four veto points to pass legislation. That’s a huge change of constitutional priorities. But it’s been done, almost unintentionally, through procedural strategies of party leaders.

This status quo is unacceptable and had to change.

But Reid never would have used the “nuclear option” without the lemming-like behavior of Senate Republicans. Less ideological GOP members could have voted more frequently to break cloture and force an up-or-down vote, as members of both parties have done, even as filibuster use has increased. They could have stopped the unprecedented number of filibusters of presidential nominations, given that the president has a clearly defined constitutional responsibility to appoint people. They could have stopped blocking duly passed laws. But they didn’t.

So Republicans decrying filibuster reform as “dictatorial” or “a day to be sad” or other hyperbolic claims should look in the mirror. No one forced them to turn filibusters from a rarity to an oft-used tool for nullification and unprecedented obstruction. They have only themselves to blame.


By: James Downie, The Washington Post, November 21, 2013

November 22, 2013 Posted by | Federal Judiciary, Filibuster | , , , , , , , | Leave a comment

“The Real Roots Of The Filibuster Crisis”: This Is About Whether Barack Obama Is Legitimately The President Of The United States

We’re about to have ourselves a little filibuster crisis, and the only surprising thing is that it took so long. We’ve now reached a point where Republicans no longer accept that Barack Obama has the right, as president of the United States, to fill judicial vacancies. Unlike in previous battles over judicial nominations, we’re not talking about the nominees’ qualifications or their ideological proclivities. It’s merely a question of the president’s constitutional privileges. Republicans don’t think he has them. This is only the latest feature of a long descent for the GOP away from considering any Democratic president—but particularly this one—as a legitimate holder of the office to which he was elected.

There has never been a president, at least in our lifetimes, whose legitimacy was so frequently questioned in both word and deed by the opposition party and its adherents. Even today, many Republicans, including some members of Congress, refuse to believe that Obama was born in the United States. Right after he was re-elected, 49 percent of Republicans told pollsters they thought ACORN had stolen the election for Obama, a decline of only 3 points from the number that said so after the 2008 election, despite the fact that in the interim, ACORN had gone out of business. Think about that for a moment. How many times have you heard conservatives say that the Affordable Care Act was “rammed through” Congress, as though a year of debate and endless hearings and negotiations, followed by votes in both houses, followed by the president’s signature, was somehow not a legitimate way to pass a law? In short, we’ve seen this again and again: it isn’t just that Republicans consider Obama wrong about policy questions or object to the substance of one or another of his actions, it’s as though they don’t quite accept that he’s the president, and everything he does carries for them the taint of illegitimacy.

If that’s where you’re coming from, it seems perfectly justifiable to upend the norms that have traditionally determined how things work in Washington. One of those norms is that while it’s common to fight against the judicial nominees of a president from the other party, you have to at least have a gripe about each of those nominees. But Republicans are no longer bothering with that. The current argument is about three vacancies on the D.C. Court of Appeals, widely understood as the second most important court in the system, because it deals with many cases concerning government’s powers (four of the nine current Supreme Court justices came there from the D.C. Circuit). Republicans argue that by attempting to fill those vacancies, Obama is engaged in an unconscionable act of “court-packing,” and besides, the D.C. Circuit doesn’t have enough work to do anyway, so the seats should just remain empty.

Until there’s a Republican president, of course! Though they haven’t said so explicitly, here’s a suggestion for Capitol Hill reporters: Next time you’re interviewing a Republican senator who says he’s filibustering these nominations because the D.C. Circuit doesn’t have enough work to do, ask him if he’s willing to make a pledge, right there and on the record, to filibuster any appointment the next Republican president makes to that court. See what he says.

Anyhow, Harry Reid is now threatening to eliminate the filibuster for judicial nominees altogether, something he can do with a simple majority vote. But he’ll need to get 50 of the 55 Senate Democrats to vote for it, and there’s a good deal of reluctance to do so, particularly since Democrats won’t be in the majority forever, and whenever they’re back in the minority they’ll want to have the filibuster for themselves. But according to recent reporting by Greg Sargent and others, Reid thinks he has the votes and is just about ready to pull the trigger if Republicans don’t relent on these three nominees.

But the threat of the “nuclear option” of eliminating the filibuster for nominees could be just a negotiating tactic. The outcome Democrats would probably most prefer is what happened the last time we went through this, in 2005. In that case the controversy was over a group of Bush appointees who were true radicals, none more so than Janice Rogers Brown, who calls the New Deal a “socialist revolution” and says things like, “In the heyday of liberal democracy, all roads lead to slavery.” That controversy ended with an agreement in which Bush got his nominees—Brown now sits on the D.C. Circuit—and Democrats promised to use the filibuster only in “extraordinary circumstances.” In other words, it was a complete win for the Republicans. The biggest difference between then and now is that Democrats never questioned whether Bush had the right to fill judicial vacancies; they had specific objections to particular nominees.

In the various flare-ups of the birther controversy, reporters would occasionally ask Republican members of Congress very basic questions, like “Do you think the President was born in the United States?” The answers were incredibly revealing. Some simply said yes, but others hemmed and hawed, saying things like “It’s not my responsibility to tell people what to think” or “I take him at his word,” as though there were still some doubt. It’s time they got asked the same kind of questions about this crisis. If you asked Republicans, “Does Barack Obama have the right to fill judicial vacancies?”, I honestly have no idea what they’d say. But it would be interesting to find out.


By: Paul Waldman, Contributing Editor, The American Prospect, November 20, 2013

November 21, 2013 Posted by | Federal Judiciary, Filibuster | , , , , , , , | 1 Comment

“A Process At The Breaking Point”: Republicans Are Hijacking The Judicial Nominating Process Without Cause

In June, President Obama nominated three qualified jurists to serve as judges on the D.C. Circuit, generally considered the nation’s second-most important federal bench. Each one of the nominees has excellent credentials, each one of the nominees sailed through the Judiciary Committee without incident, and each one of the nominees enjoys the support of a majority of the U.S. Senate.

And last night, each one of the nominees has been blocked by a Republican filibuster.

Senate Republicans on Monday denied President Obama his third nominee in recent weeks to the nation’s most powerful and prestigious appeals court and insisted they would not back down, inflaming a bitter debate over a president’s right to shape the judiciary.

By a vote of 53 to 38, the Senate failed to break a filibuster of a federal judge, Robert L. Wilkins, who was nominated to fill one of three vacancies on the United States Court of Appeals for the District of Columbia Circuit, falling short of the 60 votes needed.

Wilkins technically finished with 53 votes, but he had 54 supporters – Senate Majority Leader Harry Reid had to vote “no” for procedural reasons.

As was the case with last week’s filibuster, it’s important to recognize that the Republican obstructionism had nothing to do with Wilkins, his ideology, his temperament, or his background. On the contrary, just the opposite is true – senators in both parties agreed that Wilkins is a fine nominee.

The problem, rather, is that a minority of the Senate has decided to block every nominee for the D.C. Circuit, regardless of his or her qualifications, because Americans had the audacity to re-elect a Democratic president. Once there’s a Republican in the White House, Republican senators will presumably agree to lift the blockade.

This is important because it has simply never happened before in American history. Senators in both parties have, in a variety of instances, blocked judicial nominees they considered offensive or extreme for one reason or another, but there is nothing in the American tradition that says a minority of the Senate can maintain vacancies on an important federal bench – indefinitely – because they feel like it.

Indeed, perhaps the single most bizarre example of obstructionism run amok is Sen. John McCain (R-Ariz.), who said just a few months ago that each of Obama’s D.C. Circuit nominees deserve a vote in the Senate. McCain then proceeded to join the filibuster of the nominees he said shouldn’t be filibustered.

After yesterday’s obstructionism, Senate Democratic leaders began “taking the temperature of their caucus on whether to finally go ‘nuclear’ and change the Senate rules,” and by any fair measure, Republicans haven’t left the majority party with much of a choice.

Let’s make this plain: if Senate Democrats don’t force a confrontation over this, they will, for the first time in the institution’s history, have allowed a minority of the Senate to hijack the judicial nominating process without cause.

The status quo is, for lack of a better phrase, a simmering constitutional crisis of sorts. Either Democrats act or a precedent will be set.

What’s unclear is whether Dems will, or even can, proceed with the so-called “nuclear option.” Does the party have the votes to execute the plan? Do they have the intestinal fortitude to accept the blowback from Senate Republicans relying on obstructionist tactics that have never before been tried in the United States?

Last week, Sen. Pat Leahy (D-Vt.), the Senate Pro Tem and chairman of the Judiciary Committee, said, “I think we’re at a point where there will have to be a rules change.” Senate Majority Whip Dick Durbin (D-Ill.) added soon after, “I’ve said it before and I’ll say it again. There comes a tipping point, and I’m afraid we’ve reached that tipping point.”

If they were waiting to see what happened with Wilkins, now they know. Yesterday, Sen. Jeff Merkley (D-Ore.), a leading proponent of Senate reforms, asked, “When will we say enough is enough?”

In the short term, it’s up to Democrats themselves to answer this question. Republicans, whose support is not needed for the nuclear option, have effectively dared the majority party to end the blockade and return the Senate to its earlier traditions. In fact, Sen. Chuck Grassley (R-Iowa), whose antics have been more offensive than most in this debate, dared Democrats just a week ago to restore the original Senate process for judicial nominees.

Senate Republicans, for all intents and purposes, have broken the judicial confirmation process. They know they’re engaged in tactics with no precedent in the American tradition; they know it’s obstructionism on an unsustainable scale; they know it’s wholly at odds with every commitment they made during the Bush/Cheney era; and they just don’t give a darn.

Whether the Democratic majority is prepared to simply tolerate this crisis and allow the process to be hijacked for the indefinite future is unclear.

* Postscript: If you listened to the debate at all, you may have noticed GOP senators justifying their blockade by saying the D.C. Circuit handles fewer cases than the other circuits, and therefore can better tolerate indefinite vacancies. In case anyone was wondering whether the argument has merit, it doesn’t – this nonsense was debunked in September.


By: Steve Benen, The Maddow Blog, November 19, 2013

November 20, 2013 Posted by | Federal Judiciary, Presidential Nominations, Senate | , , , , , , | 1 Comment

“A Failure Of Democracy”: Judge Richard Posner’s Unforced Error On Voter ID And Non-Existent Voter Fraud

Two weeks ago, Richard Posner, one of the most respected and iconoclastic federal judges in the country, startled the legal world by publicly stating that he’d made a mistake in voting to uphold a 2005 voter-ID law out of Indiana, and that if he had properly understood the abuse of such laws, the case “would have been decided differently.”

For the past ten days, the debate over Judge Posner’s comments has raged on, even drawing a response from a former Supreme Court justice.

The law in question requires voters to show a photo ID at the polls as a means of preventing voter fraud. Opponents sued, saying it would disenfranchise those Indianans without photo IDs — most of whom were poor, elderly, or minorities. State officials said the law was necessary, even though no one had ever been prosecuted for voter fraud in Indiana.

Judge Posner claimed, during an Oct. 11 interview with HuffPost Live, that at the time of the ruling, he “did not have enough information … about the abuse of voter identification laws” to strike down the Indiana statute. But he also said the dissenting judge on the panel, Terence Evans, had gotten it “right” when he wrote that the law was “a not-too-thinly-veiled attempt to discourage election-day turnout” by certain voters who tended to vote Democratic. (It was passed on a straight party-line vote by a Republican-controlled legislature.)

Last Thursday, former Supreme Court Justice John Paul Stevens sounded several of the same notes, telling the Wall Street Journal that while he “isn’t a fan of voter ID,” his own 2008 opinion upholding Judge Posner’s ruling was correct — given the information available at the time. Incidentally, Justice David Souter dissented for roughly the same reasons as Judge Evans, and Justice Stevens now says that “as a matter of history,” Justice Souter “was dead right.”

But all the judges had the same record in front of them at the time. So what information did the dissenters rely on that Judge Posner and Justice Stevens did not? That’s the question raised in a smart critique by Paul M. Smith, who argued the plaintiffs’ case before the Supreme Court.

Mr. Smith pointed out that there was never any doubt the law would make voting harder for potentially tens of thousands of voters, and that the plaintiffs submitted numerous affidavits from voters who explained how they would be harmed by the law. Even if the actual number was lower, it was certainly higher than zero, which is the number of voter-fraud incidents recorded in Indiana when the law was enacted.

In other words, both the Seventh Circuit and the Supreme Court got the balance of burdens wrong, as Indiana University law professor Fran Quigley rightly noted. Given that voting is a fundamental right, Quigley wrote, “the burden should have been on the State of Indiana to prove the law was necessary, not the challengers to prove how it would trigger abuse.”

Judge Evans put it more pungently in his 2007 dissent, saying the law was effectively using “a sledgehammer to hit either a real or imaginary fly on a glass coffee table.”

Rather than acknowledge this reality, Judge Posner’s original opinion dismissed the importance of the voters’ claims, contending that since no election gets decided by a single vote, the “benefits of voting to the individual voter are elusive.”

That bizarre logic suggests that the judge’s problem was not a lack of information, but what former White House counsel Bob Bauer called “a failure of democratic imagination.”

Particularly in light of the Supreme Court’s decision in June gutting the Voting Rights Act, it would be nice if Judge Posner extended his fuller understanding of the true nature of voter-ID laws to his legal opinions, and not simply to online interviews.


By: Jesse Wegman, Editors Blog, The New York Times, October 22, 2013

October 23, 2013 Posted by | Federal Judiciary, SCOTUS, Voter ID | , , , , , , | 1 Comment

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