“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
“Willfully Disobeying The Law”: Republican Leaders Refuse To Make Appointments To Key Obamacare Panel
The top two Republicans in Congress informed President Obama on Thursday that they will refuse to fulfill their duty under the Affordable Care Act to recommend members of a new board with the power to contain Medicare spending.
It’s a dramatic power-play driven by the explosive partisan politics of Obamacare and with potentially important implications for federal health care policy.
In a letter to President Obama, House Speaker John Boehner (R-OH) and Senate Minority Leader Mitch McConnell (R-KY) noted their original opposition to Obamacare, reiterated their intent to repeal it entirely, and declared that they would not make any appointments to the Independent Payment Advisory Board.
The IPAB is a 15-member panel whose members must be confirmed by the Senate. The President selects three members himself and is required by law to seek three recommendations each from the top Democrat and Republican in each chamber. With Thursday’s letter, Boehner and McConnell refused to make any recommendations.
The IPAB will be stood up in 2014 by Obamacare and tasked with making cuts to Medicare provider payments (it may not touch benefits) if costs exceed economic growth plus an additional percentage point in any given year. Congress can override it by passing equally large cuts with a simple majority or waiving the cuts entirely with a three-fifths majority.
“Because the law will give IPAB’s 15 unelected, unaccountable individuals the ability to deny seniors access to innovative care, we respectfully decline to recommend appointments,” Boehner and McConnell wrote in the letter.
But there is a catch: if IPAB fails to do its work for any reason, the Health and Human Services secretary must order the cuts herself. So in a way, Boehner and McConnell are surrendering some of their power in order to appear as though they’re thwarting Obamacare — when in reality they’re merely turning over more control to the executive branch.
“Under the ACA, if the IPAB fails to make a recommendation as required under the IPAB provision, the Secretary may make a recommendation in its place,” said Tim Jost, a professor of health law at Washington and Lee University. “So if no IPAB is created, it is not fatal.”
IPAB is, however, capable of functioning without all of its members confirmed. But the letter reflects a continuation of broader GOP obstruction of Obamacare implementation. Senate Republicans have suggested that they may filibuster any IPAB nominee, period.
This approach makes it easier for a future Republican president to neuter IPAB by executive fiat. In the short term, it puts the Obama administration more directly in the political line of fire for any cuts that it does approve.
The other political incentive for Republicans to oppose IPAB is that spending Medicare dollars more wisely makes it easier to sustain the single-payer structure of the program, and makes it harder to argue that it needs to be privatized, as the Paul Ryan budget does.
There is some irony as well in Boehner and McConnell refusing to play ball on IPAB — a key cost containment mechanism in Obamacare — while their party is complaining about potential cost increases under the law, and government spending more generally. Limiting Medicare spending and cutting the deficit, part of the rationale for IPAB, are routinely touted as central GOP goals.
“We believe Congress should repeal IPAB, just as we believe we ought to repeal the entire health care law,” Boehner and McConnell wrote. “In its place, we should work in a bipartisan manner to develop the long-term structural changes that are needed to strengthen and protect Medicare for today’s seniors, their children, and their grandchildren. We hope establishing this board never becomes a reality, which is why full repeal of the Affordable Care Act remains our goal.”
By: Sahil Kapur, Talking Points Memo, May 9, 2013
“Disingenous And Bald Faced”: The NRA Gets Caught Lying Again
Sen. Joe Manchin (D-W.Va.), a long-time ally of the National Rifle Association with an “A” rating, appeared on MSNBC this morning and expressed his frustration with the far-right group. The conservative Democrat lamented how “disingenuous” the NRA has become, and criticizing the organization for telling “lies.”
Manchin added, “If you lose credibility — if you don’t have credibility, you have nothing.” If the NRA fails to correct its falsehoods, “they’ve lost everything in Washington.”
Clearly, the NRA will take its chances. Indeed, it’s launching a new ad campaign, claiming that 80% of police officers believe background checks will have no effect on violent crime. Is that true? Actually, no — William Saletan explained today it’s a “bald-faced lie.”
If you read the methodology posted at the bottom, you’ll see that it isn’t really a poll, since it wasn’t conducted by random sampling. It was “promoted” to the site’s members and was easy to flood with advocates of a particular viewpoint. (To give you some idea of how biased the sample is, 62 percent of those who participated in the poll say, in question 15, that if they were a sheriff or a chief of police, they would not enforce more restrictive gun laws.) But set that problem aside. The bigger problem, in terms of the NRA’s ad, is that the poll never asks whether background checks will have an effect on violent crime.
In other words, the NRA isn’t even lying well.
And yet, thanks at least in part to Republican obstructionist tactics, the NRA and their falsehoods are poised to prevail on Capitol Hill anyway.
Saletan added, “The NRA’s ad is a lie. It flunks a simple background check. Senators should ask themselves what else the NRA is lying about.”
By: Steve Benen, The Maddow Blog, April 17, 2013
“A Political Price To Pay”: Obstruction Of The Gun Violence Bill Will Further Damage The GOP
On Wednesday, supporters of legislation to limit gun violence failed to muster the sixty votes necessary to stop a Republican filibuster of the Toomey-Manchin compromise that would expand background checks to include all commercial gun sales in the United States.
Polls show that universal background checks are supported by 90% of Americans – including a vast majority of gun owners and Republicans. A clear majority of Senators are fully prepared to pass a background check measure. But no matter – the Republican Leadership decided to obstruct the democratic process in the Senate to prevent an up or down vote on the measure.
Conventional wisdom continues to hold that, while the vast majority of Americans support universal background checks, in many areas it is still smart politics not to antagonize the NRA and their relatively small number of very active – very passionate – supporters. Conventional wisdom is wrong. Here’s why:
1). Wednesday’s Washington Post poll shows that 70% of all voters and nearly half of Republicans already think the GOP is out of touch with the needs and interests of the majority of Americans. By opposing a common sense measure like universal background checks, that is supported by nine of out ten Americans, the GOP leadership threatens to further tarnish the GOP brand by appearing to be way out of the mainstream and not on the side of ordinary voters.
2). It is no longer true that large number of voters who favor measures to limit gun violence are less “passionate” about their views. It is also no longer the case that those views will be less likely to affect their voting than opponents of restrictions on guns.
In a poll released Wednesday by Project New America, over 60% of voters in Arkansas, Illinois, Maine, Nevada, New Hampshire, North Carolina, and Ohio said they strongly support background checks for gun purchasers.
And an overwhelming number of voters said they would be more likely to support candidates for Senate that supported background checks – 70% in Maine, 65% in North Carolina, 64% in Illinois, 64% in New Hampshire, 62% in Nevada, and 56% in Arkansas.
3). The GOP lost women 55% to 44% in the last election. Republican obstruction of gun violence legislation will only make their problem with women voters worse, since they are particularly passionate supporters of legislation to stem gun violence. The same goes for Millennial voters who overwhelmingly support gun violence legislation.
4). Some pundits will say that Democratic Senators contributed to the failure to muster 60 votes to end the Republican filibuster by refusing to vote to cut off debate. Forty-one of forty-five Republican Senators voted against background checks. Over 90% of Democratic Senators voted to support the background check legislation and there would have been no need for 60 votes in the first place if the Republican leadership had not decided to filibuster the bill.
The fact is that everyone in America knows that the President and Democratic Leadership strongly favor background checks, and the Republican Leadership – as well as most Republican Senators – opposed them. That is what will create a lasting impression among voters.
5). Many Republicans and some Democratic Senators have made the judgment that the money and energy of the NRA and weapons industry are more potent politically than the forces who promote legislation to curb gun violence. That may have been true in the past — no longer.
The fact is that in the last election the major NRA PAC had a .083% success rate. And now Mayor Bloomberg, the Giffords/Kelly organizations and many others are amassing substantial resources to target against the enemies of legislation to stop gun violence.
Bloomberg already showed the potency of these efforts by investing $2 million in the Illinois 2nd District Congressional District and virtually sinking pro-NRA candidates who had otherwise been strong contenders in this spring’s special election. There will be more of that to come.
6). On a press conference call Wednesday, Democratic pollster Geoff Garin pointed out that Republican opposition to legislation to limit gun violence, further shrinks the playing field where they will be competitive – both in 2014 and the next Presidential race. The Democratic Congressional Campaign Committee has a list of 27 Republican incumbents who represent swing districts where voters are supportive of anti-gun violence legislation.
Already Republicans have a very narrow, difficult path to 270 electoral votes in the Presidential map. They need to broaden their electoral playing field. But their opposition to gun violence legislation will make their path to victory in states like Pennsylvania, Florida, Ohio, Virginia, Colorado, Washington, and Oregon even more difficult.
What does all of this add up to?
The fact is that Democrats and supporters of strong legislation to curb gun violence have the high moral and political ground in this debate — and the issue is not going away. This is, after all, a 90%-10% issue.
The background check bill would have won by five votes. Instead, Republican abuse of arcane Senate rules required that it receive a super majority of sixty votes to pass. This, by the way, is yet another excellent reason to change those Senate rules to end the misuse of the filibuster.
Over the next weeks, it is up to those who support common sense gun violence legislation to come down on those who voted no like an avalanche.
There is simply no excuse for their failure to pass legislation that is supported by 90% of the American people.
Simply put, we cannot let that stand – and those who opposed the measure must be made to pay the political price.
There continues to be a perceived “passion gap” on the gun issue. Members of Congress still believe that while the majority of Americans support legislation to curb gun violence, they lack the passion of opponents. As we have seen, this is no longer true.
Now it is up to us to demonstrate that it is not true to the Senators who are more concerned about contributions and support from the weapons industry than they are about the lives of the 26 people who died at Newtown – and the thousands of others who have died since.
By: Robert Creamer, The Huffington Post, April 17, 2013
“A Government That Can’t Govern”: What Happens When One Party Is Perfectly Happy To Stay In The Minority
Over the weekend, our friend Jonathan Bernstein wrote an interesting post discussing the point, not uncommon on the left but nonetheless true, that the problem with our politics today isn’t “polarization” or “Washington” but the Republican Party. His argument is basically that the GOP is caught in a series of overlapping vicious cycles that not only make governing impossible for everyone, but become extraordinarily difficult to break out of. As the base grows more extreme, it demands more ideological purity from primary candidates, leading to more ideological officeholders for whom obstruction of governance is an end in itself, marginalizing moderates and leaving no one with clout in the party to argue for a more sensible course, and in each subsequent election those demanding more and more purity become the loudest voices, and on and on. John Hunstman would probably tell you that he would have had a better chance of beating Barack Obama than Mitt Romney (who spent so much time pandering to the right) did, but nobody in the GOP cares what John Huntsman thinks.
There’s one point Bernstein makes that shows just how serious this situation is: “Perhaps the biggest cause is the perverse incentives created by the conservative marketplace. Simply put, a large portion of the party, including the GOP-aligned partisan press and even many politicians, profit from having Democrats in office. Typically, democracies ‘work’ in part because political parties have strong incentives to hold office, which causes them once they win to try hard to enact public policy that keeps people satisfied with their government. That appears to be undermined for today’s Republicans.” It’s often noted that some people on each side benefit when the other side is in power. For instance, magazines like this one. When there’s a Republican in the White House, liberal magazines tend to get more subscribers, as liberals get angry at the President and become more interested in reading about everything he’s doing wrong. The same is true of conservative magazines when there’s a Democratic president. The boosting of certain people’s fortunes when the other side is in power stretches through ideological media to some political figures. For instance, Dennis Kucinich became a national figure not long after September 11 when he started giving speeches criticizing the War on Terror, tapping into the frustration many people on the left felt.
So George W. Bush was very good for Dennis Kucinich, and you’ll notice that once Barack Obama was elected, Kucinich faded from view. But Kucinich never had the ability to push the Democratic party along a particular path. The people on the right who benefit from being out of power, on the other hand, are much more influential within the party. And today, there are many people within the GOP who like the current situation pretty well. It isn’t that they have no governing agenda that they’d implement if given the chance, but just obstructing the Democratic agenda is going quite well for them. Rush Limbaugh and Rand Paul and even Mitch McConnell are perfectly happy with how things are going for them right now. The basic urge to get power runs up against all the incentives now built into the GOP that make getting power more difficult. Officeholders could change their tune a bit and make the Republican party more popular, but they’re not going to do it if it means they’re more likely to get booted in a primary.
So we could find ourselves endlessly trapped in the situation we’re in now. Democrats keep winning presidential elections because the Republican Party is repellent to a majority of Americans. The geographic distribution of the American population nevertheless makes it possible for Republicans to hold on to the House, and at least control enough of the Senate to grind things to a halt by filibustering everything (and Democrats are too frightened to change the filibuster rules). With the exception of the occasional bill here and there that Republicans get intimidated into letting go through, governing pretty much ceases, with the exception of whatever the President can accomplish via regulation and executive agency actions (those agencies that the Republicans don’t manage to hamstring, that is). And there you have it: a government that can’t govern.
By: Paul Waldman, Contributing Editor, The American Prospect, April 8, 2013
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