“Real World Consequences”: Why The Senate’s Nuclear Option On Filibuster Reform Matters
If you care about reproductive rights, the environment or worker rights, the decision by Senate Majority Leader Harry Reid and the chamber’s Democrats – including courageous votes by this state’s senators, Mark Udall and Michael Bennet – Thursday to reform the filibuster on presidential appointments matters. A lot.
This is not just inside-the-Beltway jabberwocky. Invoking the “nuclear option” so that a simple, 51-vote majority is all that’s needed to confirm judges below the Supreme Court level and other presidential appointments will have a profound effect on the everyday lives of many Americans. Courts are missing judges thanks to an unprecedented refusal by Republicans to confirm the president’s nominees. This is purely political, not about qualifications: as Senate Republicans have bluntly admitted, all Obama nominees are bad.
And this obstruction has real world consequences both in terms of shorthanded courts and the decisions they make.
So, for example, the 10th Circuit Court of Appeals, which is located here in Denver and handles all federal court appeals for not only Colorado but also Kansas, New Mexico, Oklahoma, Utah and Wyoming, has two vacancies thanks to GOP filibustering. And as Colorado Ethics Watch has noted, 98 percent of all federal appeals are decided at the Circuit Court level, meaning that, “decisions of the 10th Circuit on important issues such as the environment and federal land policy, reproductive freedom, voting rights and money in politics, and civil rights are often final and binding for the states in the Circuit.”
In addition to refusing to act on qualified judges to the 10th Circuit, Republicans have repeatedly blocked qualified judicial nominees to the District of Columbia Circuit Court. Per Ethics Watch, “The D.C. Circuit is a traditional stepping-stone to the U.S. Supreme Court, with four of the current justices having previously sat on the D.C. Circuit. Currently, three of the D.C. Circuit’s 11 judgeships are vacant, including one that has been open since its previous occupant, John Roberts, was confirmed chief justice of the United States in 2005.”
Judicial vacancies and court rulings matter. Without fair courts that have diverse and impartial judges, we won’t have justice when it comes to women’s health and reproductive rights.
To wit, on November 1, with three judicial vacancies thanks to Republican obstruction and no Obama nominees on the bench, the D.C. Circuit Court ruled that the Affordable Care Act’s requirement that employers provide contraception in their health insurance plans violated religious freedom. Denver’s 10th Circuit, with two Republican-blocked vacancies, decided a similar case the same way, setting up a Supreme Court challenge on whether or not women have the right to birth control regardless of their employers’ religious beliefs. This has profound and dangerous implications even beyond reproductive rights: it threatens to upend the very notion of secular labor law. What if an employer decided their religious beliefs meant they didn’t have to pay Social Security taxes, follow wage and hour guidelines, or hire workers of a different race?
So this isn’t some arcane procedural maneuver by the Senate, it’s the end result of the Republican Party refusing to respect a Democratic president. As for the argument from the right that a future Republican majority will use this move against Democrats: Republicans have broken every deal they’ve made so far to avoid the “nuclear option.” There’s little doubt that they’d change the rules anyway if they magically got the majority.
At least this way a Democratic President, Barack Obama, sees that he, his judicial nominees and appointments, and the American people get a bit more justice.
By: Laura Chapin, U. S. News and World Report, November 22, 2013
“From The Party Of No To The Party Of Oops”: How Republican Intransigence Keeps Backfiring
Exasperated with repeated Republican stonewalling of President Obama’s executive and judicial nominees, Senate Democrats on Thursday went nuclear, striking down two centuries of precedent regarding the chamber’s arcane filibuster rules.
By a 52-48 vote, the Senate voted to allow confirmation of federal judge and Cabinet nominees with a simple majority vote. The move did not, however, change the filibuster rules regarding legislation and Supreme Court nominees.
For Republicans, it was the latest defeat to come as a result of the party’s refusal to engage with their Democratic colleagues on even minor issues. The GOP has earned a reputation under Obama as the “party of no” for its intransigence, which in recent months has proven self-defeating more than once.
Take the filibuster.
For a full year, Senate Majority Leader Harry Reid (D-Nev.) threatened the nuclear option to circumvent Republican inaction. Most recently, Republicans blocked three nominees to the powerful U.S. District Court of Appeals, not because of any qualms with the candidates’ credentials, but merely because they didn’t want Obama filling vacancies on an influential court that tilts conservative.
With the GOP refusing to back down, Reid finally dropped the bomb, ensuring Obama’s nominees could get an up-or-down vote — and, as a bonus, handing liberals a procedural reform they’ve long sought.
“The American people believe the Senate is broken,” Reid said on the Senate floor Thursday, “and I believe the American people are right.”
Outraged Republicans vowed retribution, saying they would use the process to stack future courts in their favor once they’re back in control. Except to do that, they would need to first retake the Senate and White House, which may not be so easy by 2016.
In the meantime, Democrats have a little extra muscle to help Obama staff his administration as he sees fit (which, let’s remember, used to be common practice). That could be immensely important, since House Republicans have shown no interest in dealing with the president on anything substantive like immigration reform.
As New York‘s Jonathan Chait detailed more thoroughly here, “Obama has no real legislative agenda that can pass Congress,” so his “second-term agenda runs not through Congress but through his own administrative agencies.”
With the filibuster tweak, Obama can now more readily advance his administrative agenda — and Republicans allowed that to happen by forcing Reid’s hand on the filibuster. At that point, he didn’t have much choice: Had he set the precedent of allowing the minority party to prevent judicial vacancies from being filled, Republicans would only have been encouraged to do it again.
“Eventually this escalation would have become untenable,” wrote Salon’s Brian Beutler, “and somebody would have had to go nuclear.”
That’s the same argument Democrats made during the government shutdown, another instance of GOP obstinacy backfiring spectacularly. Had Democrats and President Obama acceded to the GOP’s hostage-taking, it would have established a precedent that government shutdowns and threats of debt default were the norm for legislative negotiations.
And by letting Republicans dig in, Democrats reaped the political benefits of seeing the GOP’s approval ratings tank.
The same dynamic could soon play out on health care, too.
ObamaCare face-planted out of the gate, and Republicans have rightly criticized the administration’s extensive failings in implementing it. However, the GOP has yet to offer a credible alternative health-care plan. The party’s playbook for winning the PR battle over the law, outlined Thursday by the New York Times, is heavy on strategy but light on substance.
“Rather than get out of Obama’s path of self-destruction and focus energy on creating and promoting a positive, forward-looking health-care agenda” wrote National Journal’s Ron Fournier, “the GOP has chosen to cement its reputation as the obstructionist party.”
Republicans will keep stepping on rakes if they opt merely for “no” instead of “no, but instead.” And with ObamaCare possibly set to make something of a comeback in the coming weeks, the clock is ticking.
By: John Terbush, The Week, November 22, 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
“Contempt For Progressive Legislation”: The Severely Conservative Judge Who Just Ruled Against Birth Control
Nine years ago, the California Supreme Court upheld a state law similar to the Affordable Care Act’s rules requiring most employers to include birth control coverage in their employee health plans. The sole dissent in that case was Justice Janice Rogers Brown. Nearly a decade later, Brown got her revenge. Though no longer a member of California’s highest court — President George W. Bush appointed her to the United States Court of Appeals for the District of Columbia Circuit over the strenuous objections of Democrats — Judge Brown is now the author of a 2-1 opinion holding that religious employers can ignore the federal birth control rules. What was once a fringe view held by a lone holdout is now the law in the second most powerful court in the country.
Judge Brown’s opinion barely conceals her contempt for progressive legislation. Prior to her nomination to the D.C. Circuit, Brown labeled the New Deal a “socialist revolution,” and she likened Social Security to a kind of intergenerational cannibalism — “[t]oday’s senior citizens blithely cannibalize their grandchildren because they have a right to get as much ‘free’ stuff as the political system will permit them to extract.” Since joining the federal bench, she authored a concurring opinion suggesting that all labor, business or Wall Street regulation is constitutionally suspect. The very first sentence of her birth control opinion labels the Affordable Care Act a “behemoth.”
So there was never any doubt how Brown would vote on this particular challenge to women’s access to birth control. Her opinion was joined by Judge A. Raymond Randolph, a conservative George H.W. Bush appointee. Carter-appointed Judge Harry Edwards dissented.
Coincidentally, Brown’s opinion comes just one day after Senate Republicans reignited the filibuster wars by filibustering the first of three Obama nominees to her court. Currently, the D.C. Circuit is evenly divided between Democratic and Republican active judges, but a large number of Republican judges in partial retirement allow the GOP to dominate the court. Senate Minority Whip John Cornyn wrote in a Fox News op-ed that Republicans should prevent any of Obama’s nominees from being confirmed to this court to prevent Democrats from gaining a majority. Although federal appeals courts typically hear cases via randomly drawn three-judge panels, the court’s rules permit a majority of the court’s active judges to displace any decision reached by a three-judge panel.
Senate Democrats waged an unsuccessful effort to filibuster Judge Brown’s nomination during the Bush Administration — largely because of her strident opposition to programs such as Social Security — but that filibuster was eventually defeated after Republicans threatened to invoke the so-called “nuclear option” to eliminate filibusters of judicial nominees. The deal that allowed Judge Brown to be confirmed also paved the way for Judge Priscilla Owen’s nomination. Yesterday evening, Judge Owen authored an opinion reinstating a Texas anti-abortion law blocked by a lower court judge.
There is a lesson here for Democrats trying to decide whether to invoke the nuclear opinion in the D.C. Circuit fight that Senate Republicans started this week. When Republicans had the courage to demand what they wanted and put a serious threat behind it, they got two of the most conservative judges in the country. If Senate Democrats follow suit — either by forcing Republicans to cave or by carrying through on a threat to nuke the filibuster — they will also win their fight to get President Obama’s nominees confirmed.
By: Ian Millhiser, Think Progress, November 1, 2013
“A Fight Worth Having”: A Strategy On Judicial Nominees Takes Shape
For nearly five years, the United States Court of Appeals for the District of Columbia Circuit — aka, the D.C. Circuit — has had seven sitting judges hearing cases, four from judges appointed by Republican presidents and three from Democratic presidents. Last week, President Obama finally saw one of his nominees confirmed to this bench, bringing some parity to the appeals court.
There are, however, three remaining vacancies, which Senate Republicans would love to keep vacant indefinitely. What does the White House plan to do about it? A plan has apparently come together.
President Obama will soon accelerate his efforts to put a lasting imprint on the country’s judiciary by simultaneously nominating three judges to an important federal court, a move that is certain to unleash fierce Republican opposition and could rekindle a broader partisan struggle over Senate rules. […]
White House officials declined to say who Mr. Obama’s choices will be ahead of an announcement that could come this week, but leading contenders for the spots appear to include Cornelia T. L. Pillard, a law professor at the Georgetown University Law Center; David C. Frederick, who often represents consumers and investors at the Supreme Court; and Patricia Ann Millett, a veteran appeals lawyer in Washington. All three are experienced lawyers who would be unlikely to generate controversy individually.
For those hoping for a more progressive federal judiciary, there’s a lot to like in this plan. Indeed, it’s arguably overdue.
It’s a pretty straightforward exercise — Obama has to nominate jurists to fill these vacancies, and he’s apparently focused on three excellent, mainstream choices, who would ordinarily garner broad support. From the White House’s perspective, if Senate Republicans act responsibly, great — the nominees will be confirmed, the D.C. Circuit will be at full strength, and the bench will be less conservative.
If Senate Republicans act irresponsibly and block these nominees out of partisan spite, Democrats will have even more incentive to pursue the “nuclear option” and end this style of obstructionism altogether.
And just to reiterate a relevant detail, filling judicial vacancies is important everywhere, but the D.C. Circuit is of particular significance — not only is it often a proving ground for future Supreme Court justices, but the D.C. Circuit regularly hears regulatory challenges to the Obama administration’s agenda. Indeed, as the NYT report noted, this bench “has overturned major parts of the president’s agenda in the last four years, on regulations covering Wall Street, the environment, tobacco, labor unions and workers’ rights.”
With this in mind, it’s a fight worth watching.
By: Steve Benen, The Maddow Blog, May 28, 2013
Share This Blog
Unknown Feed- An error has occurred; the feed is probably down. Try again later.
mykeystrokes.com 