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“Now That It’s 2016, New Heights Of Hypocrisy”: GOP Cynicism On The Supreme Court Reaches A New Low

A spokesman for Mitch McConnell said that the Senate should confirm judicial appointees through at least the summer.  The cutoff for confirming judges in an election year, known as the ‘Thurmond Rule,’ “doesn’t need to be June, especially because we’re so far behind on the legislative calendar,” he said.

Similarly, Senator Jeff Sessions (R-AL) said, “Let me say this about the Thurmond Rule. It is a myth. It does not exist. There is no reason for stopping the confirmation of judicial nominees in the second half of a year in which there is a Presidential election.”

Even a Bush spokesperson said that the “only thing clear about the so-called ‘Thurmond Rule’ is that there is no such defined rule.”

Of course, all that was in 2008, when George W. Bush was the lame-duck president and Democrats controlled the Senate.

Now that it’s 2016, and the tables are turned, McConnell has said he’d be shocked, shocked if President Obama nominated a Supreme Court justice as late as February of his final year in office.

In fact, while there’s hypocrisy on both sides of the aisle, a review of recent history reveals more of it on the Republican side.

Let’s begin at the beginning.  For 166 years, Supreme Court confirmations used to be a matter of course, with rare exceptions.  In the 19th century, they usually took only a few days.  The current process of Judiciary committee hearings began only in 1955, in the wake of Brown vs. Board of Education, with segregationists and other conservatives outraged at the “activist” Warren Court.

The custom of not confirming judges in a presidential election year began with the avowed segregationist Strom Thurmond, who opposed LBJ’s appointment of Abe Fortas as Chief Justice back in 1968.  (Notice, by the way, the “Thurmond Rule” wasn’t even about filling a vacancy – it was about moving Fortas from Associate to Chief Justice.)

Prior to that time, Supreme Court nominations in election years were par for the course.  Justice Frank Murphy was nominated in 1940, Cardozo in 1932, Clarke and Brandeis in 1916, and Pitney in 1912.

But there were many reasons for conservatives to oppose Fortas.  As an associate justice, he had maintained an unusually close relationship with LBJ (allegedly, Fortas helped write one of LBJ’s State of the Union speeches).  There was a minor scandal involving speaking fees. There was Fortas’s religion – it was one thing to have a “Jewish seat” on the Supreme Court, but quite another to have a Jew as Chief.

But mostly, it was ideology.  Fortas was a full-fledged member of the Warren Court, extending due process rights to minors, and writing the opinion that effectively banned creationism from public schools.

The tactic worked.  The Fortas appointment was withdrawn, and the position of chief justice has been held by a conservative for the last 46 years (Burger, Rehnquist, Roberts).

Since then, the “Thurmond Rule” has been understood as holding that lifetime appointments of all types should not be made in the final six months of a president’s term in office.

In practice, however, the “Thurmond Rule” could best be described as the “Sore Loser’s Rule,” since it is wielded by whichever party doesn’t hold the White House at the moment.  In July, 2004, Republican Senator Orrin Hatch said there was no such thing.  And Republican Senator John Cornyn threatened in 2008 that if Democrats invoked the Thurmond Rule, Republicans would go nuclear: “We could require 60 votes on every single motion, bill and procedural move before the Senate,” he said at the time.

Now, it’s the Republicans’ turn to invoke the rule, and Democrats’ turn to be outraged.

But some hypocrisy is more equal than others.

First, the Thurmond Rule has never been extended back this far.  In 2008, Democrats didn’t invoke it until the late summer; Senator Dianne Feinstein said it kicks in after the first party convention.  It’s February now, and even the longest Supreme Court confirmation in history – that of Justice Brandeis, in 1916 – took 125 days.  (Brandeis was called a “radical” and bitterly opposed by conservatives, with antisemitism even more overt than Fortas later faced.)  So this would be an unprecedented expansion of the “Rule.”

Second, the ‘Rule’ has never been applied to Supreme Court vacancies.  On the contrary, when President Reagan nominated Anthony Kennedy to the court, he was confirmed 97-0 on February 3, 1988, with Senator McConnell voting in favor.

Now, in fairness, Kennedy was nominated in November, 1987, after the Bork-Ginsburg controversies had left the court with eight justices for five months – seven months counting Kennedy’s confirmation.  It was arguably a special case.  Moreover, Kennedy was a consensus nominee who has emerged as the swing vote over the last decade precisely because he votes equally with conservatives (as in Citizens United) and liberals (as in the same-sex marriage cases).

But if no justice were confirmed now, the vacancy would be even longer: twelve months at least.

Third, the statistics cut sharply against Republicans.

According to a detailed study by the Brookings Institute, the Senate has already slowed down the pace of judicial confirmations to record levels.  In the case of Reagan, Clinton, and Bush, confirmations didn’t slow down until the second half of the presidents’ eighth year in office.  In their seventh years, the Senate confirmed 23, 17, and 29 judges, respectively.  In Obama’s seventh year?  10.

In other words, the two-term Republican presidents fared almost twice as well as the two-term Democrat presidents, with Obama faring the worst by far.

Moreover, the “Thurmond Rule” has rarely been applied with the orthodoxy Republicans now are claiming. An exhaustive 2008 report by the non-partisan Congressional Research Service unearthed a goldmine of historical information that belies the current majority’s claims:

In 1980, the Republican-led Senate confirmed 10 out of 13 judges nominated by President Carter in  September, with Senator Thurmond himself coming under fire for trying to block some of them.

In October, 1988, the Democratic-led Senate Judiciary committee led by Joe Biden confirmed 11 out of 22 of Ronald Reagan’s judicial appointees.  In October, 1992, the same committee confirmed 11 of George H.W. Bush’s.

In 2000, the Republican-led Senate confirmed 31 of President Clinton’s 56 nominations.  And the 2004 Senate (narrow Republican majority, Republican president) confirmed a whopping 80% of nominees—despite claims that the Democrat minority was obstructing them.

In 2008, a Brookings Institute review found that George W. Bush’s confirmation rate was 58% for circuit court nominations, 43% for district courts—in other words, roughly the same.

In short, until this one, an opposing-party Senate has never observed the Thurmond Rule.  Not in 1980, not in 1988, not in 1992, not in 2000.  There are typically slowdowns in confirmations, but never a standstill.  And the rule has never been invoked before the summer, let alone before the cherry blossoms bloom.  Perhaps unsurprisingly, we’re in new territory this year, and at new heights of hypocrisy.

 

By: Jay Michaelson, The Daily Beast, February 16, 2016

February 16, 2016 Posted by | GOP, Mitch Mc Connell, Senate, U. S. Supreme Court | , , , , , , , , | Leave a comment

“We’re Going Home For Christmas”: GOP-Led Senate Failing At Its Most Basic Tasks

In light of the recent focus on counter-terrorism and national security, common sense suggests the Senate would want to quickly confirm Adam Szubin to serve as the Treasury Department’s under secretary for terrorism and financial crimes.

As the Huffington Post recently reported, we’re talking about a job that “involves tracking terrorists to prevent them from raising money on the black market and elsewhere.” Szubin is extremely well qualified; he’s worked on blocking terrorist financing in previous administrations; and he enjoys broad, bipartisan support in the Senate.

And yet, the Senate isn’t voting on his nomination. Politico reported overnight that Sen. Sherrod Brown (D-Ohio) has grown impatient with mindless Republican obstructionism and tried to end this farce yesterday.

A frustrated Brown took to the Senate floor Wednesday to force a confirmation vote on Szubin and a host of other nominees stuck in his committee. The panel’s chairman, Sen. Richard Shelby of Alabama, swiftly objected to each of Brown’s attempts.

“That’s a policy decision,” Shelby said Wednesday of the nomination of Szubin, whom Shelby called “eminently qualified” during his confirmation hearing in September. “You know, he’s probably a nice guy in all this. But there is a lot of dissent in our caucus on that.”

Asked whether Szubin could move through his committee soon, Shelby responded: “We’re not going to vote now. We’re going home for Christmas.”

It’s not altogether clear what in the world Shelby was talking about. When he says Szubin is “probably a nice guy in all this,” it’s unclear what “this” refers to. When the senator added there’s “dissent in our caucus on that,” he didn’t say what “that” meant.

But even if we look past the ambiguity, the end result is the same: an uncontroversial, perfectly qualified counter-terrorism nominee is being delayed – without explanation – apparently because Republicans don’t like President Obama.

And while that may seem ridiculous – because it is – it’s important to understand that Szubin is hardly the only one.

The same Politico report explained, “Nineteen potential judges, a half-dozen ambassadors, a terrorism financing specialist and two high-ranking State Department nominees are awaiting confirmation votes on the Senate floor, a backlog that has this GOP-led Senate on track for the lowest number of confirmations in 30 years. The Senate Banking Committee hasn’t moved on a single nominee all year.”

The Banking Committee, by the way, is led by Alabama’s Richard Shelby – the one who’s praised Adam Szubin, but who also refuses to let the Senate confirm Adam Szubin.

The story on judicial nominees is every bit as exasperating. The Huffington Post reported this week on Luis Felipe Restrepo, who, for reasons no one can defend, has “endured nearly every type of Senate delay a judicial nominee could endure.”

The Senate should be voting Monday to confirm Restrepo to the U.S. Court of Appeals for the 3rd Circuit. Senators typically vote on nominees in the order in which they were nominated, and Restrepo is first in line of any district or circuit court nominee. Instead, Majority Leader Mitch McConnell (R-Ky.) passed him over and teed up a vote on the next person in line, Travis McDonough, a Tennessee district court nominee.

Restrepo has been waiting his turn for a vote since he was nominated in November 2014. His nomination didn’t go anywhere last year, so President Barack Obama renominated him in January. Restrepo waited five months before he even got a hearing in the Judiciary Committee, thanks to his own state’s senator, Pat Toomey (R-Pa.), holding him up.

After his June hearing, Judiciary Committee Chairman Chuck Grassley (R-Iowa) delayed the vote for another month, for no real reason. The committee finally voted to move Restrepo forward in July, unanimously, and he’s been waiting in line for a confirmation vote by the full Senate ever since.

The court seat Restrepo is supposed to fill has been vacant for nearly 900 days. No, that’s not a typo, and yes, it’s contributed to a “judicial emergency” on the 3rd Circuit, with a case backlog getting worse.

Bloomberg’s Jonathan Bernstein recently explained, “It’s a Senate engaged in pure partisan harassment of Obama, and indifferent to the smooth functioning of government.”

When Senate Majority Leader Mitch McConnell (R-Ky.) was promoted to his current post, he promised Americans we’d see a new, different kind of chamber. Nearly a year later, I suppose he was correct – because the Senate is now far worse.

 

By: Steve Benen, The Maddow Blog, December 10, 2015

December 11, 2015 Posted by | GOP Obstructionism, Mitch Mc Connell, Senate | , , , , , , , | 1 Comment

“Who’s Afraid Of Ted Cruz And Ken Cuccinelli?”: No Republican Is Conservative Enough To Avoid A Primary

Senator Ted Cruz’s (R-TX) plan to fight President Barack Obama’s executive action on immigration reform during the debate over the $1.1 trillion “cromnibus” spending bill didn’t go very well. Cruz raised a point of order against the bill, arguing that the portion funding the Department of Homeland Security is unconstitutional due to the president’s action. But Cruz’s move enraged his fellow Senate Republicans, unwittingly allowed Democrats to confirm some two-dozen Obama administration nominees who otherwise would not have gotten votes, and totally failed to stop the president. The measure was voted down 74-22, with 20 Republicans joining the Democratic majority to rebuke the Texas freshman.

Although Cruz reportedly apologized to his colleagues, the episode isn’t finished yet. Cruz evidently has a plan to get revenge against those who opposed him — with a little help from his friends.

In comments to Politico on Tuesday, Senate Conservatives Fund president Ken Cuccinelli suggested that his group — with which Cruz has a close association — will target the senators who voted against him in the coming elections.

“People’s votes may by themselves inspire folks to say: ‘I’m running against this guy or this girl,’” Cuccinelli warned. “I have a funny feeling that some people who weren’t thinking of running two weeks ago are thinking of running now.”

So will the seven senators on the ballot in 2016 who opposed Cruz — Kelly Ayotte (R-NH), Dan Coates (R-IN), Ron Johnson (R-WI), Mark Kirk (R-IL), John McCain (R-AZ), Lisa Murkowski (R-AK), and Pat Toomey (R-PA) — lose their jobs for opposing the Tea Party hero?

Probably not. Under closer examination, Cuccinelli’s threat rings rather hollow.

As right-wing groups have repeatedly proven, no Republican is conservative enough to avoid a primary. No single vote would have been enough to prevent 2014 challenges to Senators Mike Enzi (R-WY), Pat Roberts (R-KS), or John Cornyn (R-TX) — the 2nd, 8th, and 13th most conservative members of the Senate, according to National Journal’s 2014 rankings — and helping Ted Cruz try to blow up a government spending bill would not have saved supposed RINOs like John McCain or Kelly Ayotte from drawing right-wing opponents.

Additionally, it’s not clear that incumbents should actually fear a challenge from the Senate Conservatives Fund. In 2014, the group backed three candidates challenging Republican incumbents: Matt Bevin in Kentucky, Chris McDaniel in Mississippi, and Milton Wolf in Kansas. All three bombed in spectacular fashion.

“Our members know that our candidates are underdogs,” an SCF spokeswoman told The Washington Post in October, in an effort to defend the group’s performance. “The establishment has a lot more money and is willing to smear conservative candidates with false attacks. But they still want us to keep fighting because otherwise we wouldn’t have people like Ted Cruz, Mike Lee, and Rand Paul in the Senate today.”

That’s true. But it’s also a perfect explanation of why Republican senators have no reason to fear standing against Ted Cruz.

It’s entirely possible that some of the senators who opposed Cruz’s point of order will fall in 2016. But it’s extremely unlikely that last weekend’s vote will be the incident that doomed them.

 

By: Henry Decker, The National Memo, December 17, 2014

December 18, 2014 Posted by | Conservatives, Ken Cuccinelli, Ted Cruz | , , , , , , , | Leave a comment

“A Walmart Christmas For Congress”: The Senate Should Cancel Its Own Christmas And Stay In Session Until 2015

Assuming Democrats and Republicans agree on a bill to fund the government by Thursday, House Speaker John Boehner has told his members that they will recess after that. Despite Senate Majority Leader Harry Reid’s annual threats to keep the upper chamber in session through the holidays, the Senate is scheduled to do the same. But it shouldn’t. Instead, Reid should keep the Senate in session until Republicans take over next year in order to confirm as many executive branch and judicial nominees as possible.

Consider the actions of Senate Republicans during the past six years. Led by Majority Leader-Elect Mitch McConnell, the GOP used the filibuster to block President Barack Obama’s nominations for key executive branch and judicial positions. In some casessuch as the nomination for the head of the Consumer Financial Protection Bureauthey refused to confirm any nominee unless Democrats made specific changes to the program. In other words, they used the nomination process as leverage to extract policy changes from Democrats. They often refused to confirm any judicial branch nominees. Sick of these tactics, Democrats changed the rules of the Senate in November 2013 so that all executive branch and non-Supreme Court judicial nominees could not be filibustered. In the 13 months since, Senate Democrats have spent much of their time confirming nominees.

That will end in January as Republicans are expected to clog upif not seal off altogetherthe nominations process. “The difference between 50 Democratic senators (plus a tie-breaking vote by Joe Biden) and 49 Democratic Senators is the difference between two full years of filling the judiciary and two years of likely gridlock,” New York’s Jonathan Chait wrote before the midterms.

Relations between the parties have only worsened since then with Obama’s executive action on immigration. In a pre-buttal to that move, Senator Ted Cruz proposed that Congress “not confirm a single nomineeexecutive or judicialoutside of vital national security positions, so long as the illegal amnesty persists.” It’s not clear whether Republicans will take up that strategy, or how many nominees are “of vital national security positions,” but pressure from the Texas conservative will not make the nomination process any smoother.

That’s what makes Reid’s decision about whether or not to keep the Senate in session so important. Any time spent in recess between now and when the 114th Congress begins on January 3 is time that could have been used to confirm nomineesnominees that won’t be confirmed otherwise. Lawmakers will likely object to working through the holidays. If Reid must give them a couple of days off around Christmas and New Year’s, to appease them, he should do so. But it is too important for the functioning of the executive branch and the makeup of the courts to spend the entire time on holiday.

 

By: Danny Vinik, The New Republic, December 8, 2014

December 9, 2014 Posted by | Christmas, Congress, Harry Reid, John Boehner | , , , , , | Leave a comment

   

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