“Enough With The Katrina Analogies”: The Ethical Merits And Demerits Don’t Quite Match Up
It’s more obvious every day that a certain element of the conservative movement is focused on achieving revenge for the humiliation suffered by George W. Bush during his second term, and wants Barack Obama to be understood as walking the same downward path to ignominy. And so any time the president has a public relations setback or a policy problem, it’s his “Iraq” or “Katrina.” The latter has unsurprisingly become the preferred label for the sudden surge in border crossings at the Rio Grande attributable to events in Central America, and now for the president’s refusal to do photo ops at the border.
Before the practice gets too far out of hand, TNR’s Alec MacGillis offers a brisk refutation of the meme:
[T]here is the failure to consider even the most basic differences in context between the crisis in New Orleans and the Gulf coast in 2005 and what has been unfolding on the border. In the former instance, we were presented with an administration that willfully downplayed both the immediate threat of the approaching storm and the broader threat that, if the climatologists are to be believed, was represented by the storm.
In the latter instance, we are presented with an administration struggling to contain one particularly dramatic manifestation of a problem—a broken immigration policy—that the administration itself has been trying to fix, has indeed made its chief priority for the remainder of the president’s term, but has been stymied in comprehensively addressing by the identity crisis-driven obstructionism and indifference of the party that controls the House of Representatives. Other than that, yes, this is just like Hurricane Katrina. And the women and children lingering on the border, and the overwhelmed Border Patrol personnel trying their best to manage their presence, will be awaiting the magic word of whether the president’s caravan will be arriving on the horizon, which will surely solve everything.
I’d say there’s one more pretty big difference between Bush’s handling of Katrina and Obama’s handling of the “border crisis.” Bush was criticized by liberals for failing to take quick compassionate action to save lives threatened by flooding. Obama’s being criticized by conservatives for failing to immediately ship children back across the border in cattle cars; some seem to think they should simply be shot on sight. The ethical merits and demerits don’t quite match up.
By: Ed Kilgore, Contributing Writer, Washington Monthly Political Animal, July 9, 2014
“The Senate Comity Brigade Was Wrong”: Democratic Activists Urging Filibuster Reform For Presidential Appointments Were Right
I wrote a few days ago about how the Supreme Court’s decision to bar recess appointments made with less than a 10-day break in Senate proceedings increases the importance of controlling Congress.
But it also proves again that Democratic activists urging filibuster reform for Presidential appointments were right, and the status-quo-ante comity-obsessed Senators were wrong.
Now the Democrats who supported changing the rules are rightly taking plaudits for their success:
Democrats say the decision Thursday to rebuke Obama’s 2012 appointments to the National Labor Relations Board has made their change to Senate rules seem remarkably prescient. That change made it easier for the Senate to confirm Obama’s nominees, transforming recess appointments — a tactic to get around the chamber’s hurdles — into something of a relic.
That shift has already allowed Senate Democrats to squeeze through several nominees who might have been defeated under the old framework.
“Clearly this president has faced more opposition for even routine appointments, let alone important lifetime appointments like the judiciary. I’m sorry we had to change the rules and it’s created some pain in our Senate that’s still there,” said Senate Majority Whip Dick Durbin (D-Ill.). “But there had to be a way for this president to lead.”
The language used by Durbin here is still odd. It has “created some pain” in “our” Senate? Too often, the language used by Senators to describe the upper chamber is reminiscent of a private drinking club or children’s clubhouse. It isn’t. Whatever advantage there might have been in the past to friendly interactions between Senators across party lines to accomplish national goals has long been erased by hardline partisanship.
That’s largely because movement conservatives largely purged northern Rockefeller Republicans from their ranks, and because the old Dixiecrats who liked New Deal policies as long as they didn’t benefit minorities too much are gratefully a relic of the past. So on most issues not related to national security, there’s frankly very little reason for Senators to “reach across the aisle” anymore.
The clubby comity so prized by Senators now serves little purpose beyond the worst kind of bipartisanship on behalf of wealthy corporate interests and military contractors. It would be far better for Senators to worry more about how well their own views match those of their constituents, than how well they get along with one another.
By: David Atkins, Political Animal, The Washington Monthly, June 28, 2014
“So When Is The Senate In Recess?”: An Extended Recess Broken Up By Several Pro Forma Sessions Is Still A Recess
Before the Circuit Court went all activist in the Canning case, everyone thought the question was defining what counted as a “recess.” On that issue, the Supreme Court had a clear answer today: “For purposes of the Recess Appointments Clause, the Senate is in session when it says that it is, provided that, under its own rules, it retains the capacity to transact Senate business.”
That’s a nominal defeat for President Barack Obama, who had claimed that an extended recess broken up by several pro forma sessions is still a recess.
The history here is that a Senate with a Democratic majority used pro forma sessions every three days in 2007-2008 to prevent President George W. Bush from making recess appointments, and Bush didn’t contest the maneuver. Then, in 2011, the Republican majority in the House of Representatives tried the same workaround, which forced the Senate to stay “in session” because of the constitutional provision that when one chamber is in session, the other cannot adjourn for “more than three days.”
The Senate-initiated attempt to block recess appointments seemed dicey, but probably reasonable. The House-initiated obstruction, however, was constitutionally noxious. After all, the House has no constitutional role in presidential nominations. By refusing to recess, the Senate essentially is enforcing its role in advise and consent. That changes when lawmakers hold pro forma sessions instead of “real” sessions and enforce that role at their convenience. When the House does it, however, that chamber is being inserted into matters it has no business being involved in.
The court didn’t differentiate those two very different situations today, but Associate Justice Stephen Breyer reminded everyone that there is another option for combating the House: The Constitution allows the president to act if the two chambers cannot agree on adjournment. Although I argued strongly at the time that Democrats shouldn’t allow the House to veto nominations — and that therefore Obama should have acted — I believed that the unused Article II power of adjournment was the safest constitutional ground.
As it turns out, the House option is pretty much a moot question since Senate Democrats pushed through the nuclear option, which allows nominations to go through with a simple majority vote. The House option for obstruction was relevant only in cases in which the president and Senate majority were from one party, and the House majority and a Senate minority large enough to kill nominations by filibuster were from the other party. Given simple majority confirmation, the House no longer has the power to obstruct. I suppose it’s still true that a president and the Senate majority might prefer a simple recess appointment to going through the hurdles of confirmation, even if it’s guaranteed to happen, but that’s not as big a deal as the attempt to nullify entire agencies by the House in conjunction with a Senate minority.
To be sure, the Senate will still have the ability to refuse to confirm any nominee and to prevent recess appointments. But that was always going to be the case; the only thing at stake here (on the narrow question of what counts as a recess) was how inconvenient it was going to be for the Senate to do so. In the long term, odds are that future legislation will be written more carefully to prevent nullification by obstructing nominations, now that Republicans have revealed that such a weapon is available and will be used. Constitutionally, none of that is a big deal.
To get into the details, the question of what counts as a “recess” is complicated because the Constitution doesn’t offer a definition, and usage now and then is ambiguous. Both Breyer and Associate Justice Antonin Scalia discussed two meanings (recess between two sessions of Congress and recess within one session). But, in fact, there are three usages: everyone in and around Congress knows that “recess” can mean both short periods when Congress is out for a weekend, the night, or even lunch, or it can mean the longer “district work periods” that last for a week (with surrounding weekends) or longer. Without explaining it very well and therefore opening himself up to Scalia’s claims that it’s just an arbitrary ruling, Breyer is basically attempting to follow that perfectly common-sense, ordinary usage distinction. That is the correct way to go; it’s the only option that really conforms to Senate practice.
That leaves the question about the pro forma sessions. Breyer puts a fair amount of weight on the ability of the Senate to transact business (by unanimous consent, or presumably by a voice vote if it wasn’t challenged) during these sessions. That’s true, but it’s also true that everyone talks and acts as if the Senate is in a normal recess during those periods. So the court has erred, but it’s a close call, and relatively little is at stake in this portion of the decision, especially in the post-nuclear era.
By: Jonathan Bernstein, Ten Miles Square, Washington Monthly, June 27, 2014
“A Culture Of GOP Obstruction”: When Basic Governance Is Deemed Controversial
The U.S. Court of Appeals for the District of Columbia Circuit, widely seen as the nation’s second most important federal bench, has three vacancies. President Obama yesterday introduced three non-controversial nominees to fill those vacancies. And were it not for the breakdowns of the American political process, none of this would be especially interesting.
Senate Republicans have come up with lots of reasons for not wanting to advance President Barack Obama’s nominees to the powerful U.S. Court of Appeals for the D.C. Circuit, whether it be false accusations of “court-packing” or claims that the court doesn’t need its three vacancies filled because it’s not busy enough.
On Tuesday, Senate Minority Leader Mitch McConnell (R-Ky.) argued there was another problem with moving Obama’s nominees: a “culture of intimidation” being fueled by Democrats.
Sen. Lamar Alexander (R-Tenn.) went further, responding to the nominees by telling reporters, “There is no basis for the president inventing these crises. It’s unpresidential. It’s embarrassing to me.”
Just so we’re clear, we’ve apparently reached the point at which a president nominating judges to fill existing vacancies is seen by Republicans as outrageous. They not only decry “court packing” — a phrase they use but clearly do not understand — they also feel “intimidated” and “embarrassed” by a basic governmental process outlined by the Constitution.
Indeed, according to Lamar Alexander, Obama is creating a “crisis.” Worse, it’s “unpresidential” for the president to exercise his presidential duties. I realize it’s a little unusual for the White House to introduce three judicial nominees at once, but this GOP freak-out is excessive by any sensible standard.
But, Mitch McConnell says, there’s no reason for Democrats to complain. “You know, we’ve confirmed an overwhelming number of judges for President Obama,” the Minority Leader told reporters yesterday. “So the president’s been treated very fairly on judicial [nominees].”
Is this true?
Greg Sargent took a closer look.
It is not easy to conclusively determine whether GOP obstructionism is unprecedented. But there are some data points we can look at. For instance, Dr. Sheldon Goldman, a professor of political science at the University of Massachusetts who focuses on judicial nominations, has developed what he calls an “Index of Obstruction and Delay” designed to measure levels of obstructionism. In research that will be released in a July article he co-authored for Judicature Journal, he has calculated that the level of obstruction of Obama circuit court nominees during the last Congress was unprecedented.
Goldman calculates his Index of Obstruction and Delay by adding together the number of unconfirmed nominations, plus the number of nominations that took more than 180 days to confirm (not including nominations towards the end of a given Congress) and dividing that by the total number of nominations. During the last Congress, Goldman calculates, the Index of Obstruction and Delay for Obama circuit court nominations was 0.9524.
Goldman told Greg, “That’s the highest that’s ever been recorded.” He added, in reference to the most recent Congress, “[I]t is unprecedented for the minority party to obstruct and delay to the level that Republicans have done to Obama in the 112th Congress.”
The Congressional Research Service also found (pdf), “President Obama is the only one of the five most recent Presidents for whom, during his first term, both the average and median waiting time from nomination to confirmation for circuit and district court nominees was greater than half a calendar year (i.e., more than 182 days).”
It appears that by objective standards, McConnell’s boasts have no basis in fact. Imagine that.
Nevertheless, the Minority Leader yesterday refused to commit to allowing the Senate to vote up or down on the new nominees, not because he can think of something wrong with them, but because he thinks the D.C. Circuit isn’t busy enough to need filled vacancies.
With each passing day, the “nuclear option” becomes more viable.
By: Steve Benen, The Maddow Blog, June 5, 2013
“Chuck Grassley’s Pretext”: Why The GOP Is So Obsessed With Three Little Judges
It’s beginning to feel a bit like 1937 in Washington this week as the White House and Senate Republicans hurl allegations of “court-packing” up and down Pennsylvania Avenue at one another. The what — Republican obstruction of Obama’s nominees to fill three vacant seats on the powerful D.C. Circuit Court of Appeals — has been widely and well covered elsewhere. What bears further explanation is the why. It goes without saying that the GOP has an interest in blocking Obama’s nominees in general; the fewer judges the president appoints, the less liberal the courts overall. But why do they care so much about these three particular nominees — who haven’t even been named yet — that they’re willing to risk triggering a “nuclear war” on filibuster reform while also trying to change the basic makeup of the court.
First, there’s the numbers. Right now, Republican appointees have an effective 9-5 majority on the D.C. Court. There are only 11 “active” seats, but another six judges serve as a sort of auxiliary corps in a semi-retirement status where they participate in cases as needed. With three vacancies on the active bench, these “senior” judges are needed often. Of all the judges, three were appointed by George W. Bush, two by George H.W. Bush, and four by Ronald Reagan, compared to just three by Bill Clinton, and one by Jimmy Carter. Until last week, when the Senate finally confirmed Sri Srinivasan, Obama had made zero successful appointments in over four years, despite the vacancies, thanks to GOP obstruction.
“That’s what this is about. It’s that the court is already packed in favor of Republican judges,” Judith Schaeffer, the vice president of the Constitutional Accountability Center, told Salon.
Second, the stakes couldn’t be higher. With near-exclusive purview over federal government action, the D.C. Circuit will be a critical battleground in legal challenges against everything from the Affordable Care Act to new EPA regulations to curb greenhouse gas emissions, not to mention labor policy, gun safety regulations, Wall Street reform, national security issues, campaign finance, voting rights, and much more. With Congress deadlocked, executive action has become an increasingly important tool for the Obama White House, and the D.C. Circuit is where people trying to stop those reforms will mount their fights. Already, the Republican majority on the court has rolled back a major EPA air pollution rule, curbed Obama’s recess appointment powers and hamstrung the National Labor Relations Board.
Outside of the House of Representatives, the court is one of the most important roadblocks to Obama’s agenda. Obviously, Republicans would like to keep it that way.
But now, the White House is reportedly planning to push through three nominations simultaneously in an effort to overcome GOP filibusters. Republicans have filibustered plenty of nominees, but they pounced on this plan with unusual vigor and a unified message. Sen. Chuck Grassley, the Judiciary Committee’s top Republican, called this scheme “court packing.” Senate Minority Leader Mitch McConnell said the White House is trying “to pack the D.C. Circuit with appointees.” Utah Sen. Mike Lee, a constitutional lawyer hailed by conservatives for his legal smarts, also invoked the term.
It’s a little disturbing to think that three of the Senate’s top Republicans on judicial matters have no idea what court packing is, but that’s what we’re lead to believe if we assume they’re being honest in their charges. FDR tried to “pack” the Supreme Court in 1937 by dramatically expanding its size, so he could appoint more justices who agreed with him. Court packing involves trying to change the rules of the game in your favor. Obama is following the rules set forth by the Constitution and Congress by aiming to fill three already vacant seats. To accuse Obama of court packing is plainly ridiculous.
Now, wouldn’t it be ironic if Grassley and his colleagues were in fact the ones who wanted to change the rules of the game? As it turns out, they do. Grassley wants to eliminate the three vacant seats from the court entirely, thus cementing the current Republican majority indefinitely. This is the plan that has led the White House to turn the “court packing” allegation back on Republicans, as White House senior adviser Dan Pfeiffer did in a blog post today. “[O]n the merits, Senator Grassley’s ‘court unpacking proposal’ fails to make any sense,” the Obama aide wrote.
Grassley’s argument — or pretext, depending on where you sit on the political spectrum — is that the D.C. Circuit is underworked, because it sees fewer cases per judge than other appellate courts. Eliminating each judgeship would save $1 million per judge per year. Million with an “m” — a pretty puny amount of money when it comes to government.
Critics, meanwhile, see Grassley’s plan as little more “pure partisan hypocrisy,” as Schaeffer said, predicated on an erroneous assumption about the court’s workload. Currently, the D.C. Circuit has 120 pending cases per authorized judgeship, which Grassley says is too few. But under George W. Bush, Grassley voted to confirm two judges when the court had just 109 cases per judge.
And everyone agrees the cases the D.C. Circuit deals with are far more complicated than those seen on other circuits, so you can’t really compare the numbers. “There is cause for extreme concern that Congress is systematically denying the court the human resources it needs to carry out its weighty mandates,” wrote Pat Wald, who was the chief judge on the D.C. Court of Appeals, in the Washington Post.
You don’t have to be a federal courts scholar to see the stakes here, or the politics at play, but they’re probably hoping only scholars will pay attention.
By: Alex Seitz-Wald, Salon, May 30, 2013
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