“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
“Unable To Win Elections”: They Tried To Break The Federal Government, Now They’re Going After The Courts
The astounding show of Republican recklessness that led to last month’s government shutdown made one thing very clear. The new Republican Party — the one ruled by the Tea Party — isn’t interested in making our government work. They want to break it.
Now, as if shutting down the government of the United States, furloughing hundreds of thousands of government employees, wasting billions of dollars and threatening to wreck America’s economy wasn’t enough, Republicans in Congress have set their sights on a new target: our justice system.
Yesterday, Senate Republicans took their campaign against our government to a whole new level when they blocked the nomination of Nina Pillard to the U.S. Court of Appeals for the District of Columbia Circuit, which is widely considered to be the nation’s second-highest court behind the Supreme Court.
Pillard is one of President Obama’s three nominees to fill vacancies on the D.C. Circuit, which is currently operating with nearly one-third of its active judgeships vacant. All three nominees have extraordinary professional qualifications. All three have support from across the ideological spectrum. Yet Senate Republicans are vowing to filibuster all three simply because they were nominated by President Obama.
One of the most basic functions of the U.S. Senate is to provide “advice and consent” to the president on his nominations to executive agencies and to the federal courts. For most of our country’s history, the Senate has generally taken this constitutional order responsibly, using its power to block only nominees whom senators found unqualified or dangerously far out of the mainstream. That is, until now.
The same party that shut down the government in an attempt to nullify a duly-enacted law that it does not like is now trying to prevent a twice-elected president from filling vacancies on an important court — a duty entrusted to him by the Constitution.
There’s a reason Republican obstructionists have targeted the D.C. Circuit. The court has the last word on important federal laws and administrative rules on issues ranging from clean air regulations to workers’ rights to cigarette labeling requirements to presidential recess appointments. Basically, just about any area that we regulate through our federal government is going to be affected by the D.C. Circuit. And it is currently dominated by conservative ideologues: nine of the 14 judges on the court (including “active” judges and senior judges who participate in panel decisions) were nominated by Republican presidents seeking to remake the courts in their ideological image.
Republicans want to keep it this way. President Obama has nominated five people to the court, yet Senate Republicans have allowed only one of these nominees to so much as receive a confirmation vote. By comparison, the Senate confirmed four of George W. Bush’s nominees to the court and eight of Ronald Reagan’s. In fact, the ninth, tenth, and eleventh seats that Republicans today demand remain vacant are ones that they ensured were filled when George W. Bush was president.
To give you an idea of just how conservative this court is as a result, just this month a George W. Bush nominee and a George H.W. Bush nominee ruled that employers who oppose birth control should be able to deny their employees access to affordable contraception through their insurance plans — an absurd twisting of the true meaning of religious liberty. A few months ago, the court ruled that a law requiring employers to display a poster listing employees’ legal rights violates the free speech rights of the employers. No, really!
Unable to win national elections, Republicans are trying to hold on to what power they still have — and that includes control of the powerful D.C. Circuit. Just like they couldn’t accept that the Affordable Care Act was the law of the land, the Tea Party won’t admit that Americans chose President Obama to be the one making picks to the federal courts.
The Tea Party thinks that it has some sort of intellectual property claim on the U.S. Constitution. But sometimes I wonder if its leaders have even read it.
By: Michael B. Keegan, President, People For The American Way, Published in The Huffington Post Blog, November 13, 2013
“A Total Perversion Of The American System Of Government”: The GOP Once Again Proves Too Irresponsible To Handle The Filibuster
What does a political party do when they are badly in need of expanding their base to include women and minorities?
I’m fairly sure that exercising its right to filibuster the nominees of a president—one a highly respected woman nominated to the United States Court of Appeals for the District of Columbia Circuit and one a highly respected and well liked African American Congressman nominated to run the Federal Housing Finance Agency—would not be at the top of the list of recommend behavior.
Yet, this is precisely what the Senate Republicans did today.
What makes the blocking of these nominees so remarkable is that there is no shortage of support when it comes to the quality of the nominees among the very GOP Senators that voted to deny the Senate the opportunity to vote up or down on their nomination. Rather, the Republicans’ problem is with the president and the reality that a Democratic appointment to the United States Court of Appeals for the District of Columbia will give Democrats a majority on that important judicial body.
Patricia Ann Millet is the Obama nominee to join the US Court of Appeals.
When Ms. Millet appeared before the Senate Judiciary Committee, the committee charged with investigating and considering her nomination, not so much as one Republican Senator on the panel had a concern with or so much as a bad word to say about Millet’s qualifications.
Indeed, Ms. Millet was described by none other than Senator Ted Cruz as possessing “very fine professional qualifications.”
Yet, when the matter came to a cloture vote, the Democrats were unable to succeed in rounding up 60 votes and Ms. Millet’s nomination was blocked by a filibuster of the Senate Republicans.
The use of the filibuster to deny Millet’s nomination is but one more example of the Republicans simply refusing to recognize and accept that Barack Obama won the 2012 election and, having done so, gets to appoint people to fill vacancies in the federal court system.
You know, just like the Republican president who was able to appoint a few Justices to the United States Supreme Court, handing conservatives the majority vote in that body.
Currently, there are three vacancies on the DC Circuit Court which is generally regarded as the second most influential court in the nation following the Supreme Court. With the makeup of the DC Circuit Court currently split evenly between conservative appointees and liberal appointees, Senate GOPers cannot bring themselves to approve the nomination of someone they have deemed eminently competent for the job as to do so would give the appointees of Democratic presidents the edge in the vote count—although history confirms that one never knows how a judge will vote once they are seated on the bench.
While I understand that conservatives would prefer not to see the balance tip in favor of more liberal judges on so important a court—just as liberals squirmed as President Bush appointed hard-line conservatives to SCOTUS—anyone who would support this type of Senate behavior has completely rejected one of the most fundamental of Constitutional directives. While the Senate possesses the right to advice and consent on presidential nominees, that obligation was created to insure that high quality candidates with proper qualifications would fill these important roles.
Note that the filibuster is not provided for in our Constitution. The Founders intended that the Senate would take a vote on nominees and the majority would carry the day.
The vote on Ms. Millet’s nomination in the full Senate was 55-38 in favor of bringing the nomination to the floor for a full vote where Ms. Millet is expected to easily achieve confirmation. This vote included all of the Democrats voting for cloture along with two Republicans who also voted to bring up the nomination while three Republicans dogged it and voted “present”.
Yes, I get the irony of the GOP Senators voting ‘present’ after hammering the President for doing the same during his term in the Illinois legislature.
Remarkably, the Senate GOP leadership is not even pretending they have personal or competency issues with Ms. Millet as a candidate.
Said Senate Minority Leader, Mitch McConnell—
“Our Democratic colleagues and the administration’s supporters have been actually pretty candid. They’ve admitted they want to control the court so it will advance the president’s agenda.”
What a shocker! A Democratic president wants to appoint someone to the court who shares his point of view. Who would have thought such a thing would be possible here in America—excepting, of course, every single American President who has ever made his own appointments to the federal bench.
The mere fact that Minority Leader McConnell could make such a comment with a straight face should provide ample evidence of the fact that the filibuster does not belong in the hands of a party that would so abuse both the privilege and their constitutional obligations.
For those senators who justify their actions by claiming that they owe deference to the President when it comes to approving the appointment of cabinet members and other executive branch roles but believe more scrutiny should be exercised when it comes to judges appointed to lifetime terms, one wonders how they explain their filibustering of Congressman Melvin Watts to become the head of Federal Housing Finance Agency.
The refusal to confirm Watts is particularly remarkable when considering that a sitting member of Congress appointed by a President to an executive position has not failed to be confirmed since before the American Civil War.
Mr. Watt’s personal competency, temperament or character has never been questioned by Republicans who oppose his nomination.
Instead, Republican opponents have suggested that they are displeased that Obama appointed a politician for the job. In other words, the senators who are opposed to Rep. Watts on this basis are saying that they wouldn’t even vote for themselves if appointed.
Anyone believe that?
Of course, this might be their best argument given that these Republican politicians likely have special insight into how they are each unfit to hold a position of responsibility.
Some GOPers have suggested that the office to which Mr. Watts has been chosen—one that oversees two rather complex financial institutions—would be better run by a “technocrat”.
That’s a tough argument to make considering that the President’s first nominee for this job back in 2010 —Joseph A. Smith, Jr. the North Carolina banking commissioner—was such a technocrat. Still, there was so much objection to Smith’s nomination by Republicans that Smith eventually chose to withdraw from consideration.
The time has come for the Democratic majority in the Senate to revise the rule and change when and how the filibuster can be used. While I would not recommend complete destruction of the device, it seems clear that it must be modified to bar the use of the filibuster when it comes to Presidential nominees.
As for those who argue that this could ‘backfire’ on Democrats should the GOP gain control of the Senate, I have no problem with this whatsoever. When it comes to presidential appointees—even if that president is a Republican—there ought to be some specific problem with the candidate if the nominee is to be rejected. It cannot be about one party in the Senate or the other getting to deny a presidential appointment because it may shift the balance on a particular federal court.
If a candidate is unfit for the office—think Harriet Meyers—then the Senate should reject that candidate. But if it simply is a matter of denying a highly qualified position because the opposition party doesn’t want anyone but someone sympathetic to their own beliefs, that is just not the way things were intended to operate and represents a total perversion of the American system of government.
By: Rick Ungar, Op-Ed Contributor, Forbes, October 31, 2013
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