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“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

“A Nuclear End To Republican Denial”: Seeing The World As It Is Rather Than Pining For A World That No Longer Exists

Those who lament the Senate Democrats’ vote to end filibusters for presidential nominations say the move will escalate partisan warfare and destroy what comity is left in Congress. Some also charge hypocrisy, since Democrats once opposed the very step they took last week.

In fact, seeing the world as it is rather than pining for a world that no longer exists is a condition for reducing polarization down the road. With their dramatic decision, Senate Democrats have frankly acknowledged that the power struggle over the judiciary has reached a crisis point and that the nature of conservative opposition to President Obama is genuinely without precedent.

What happened on Nuclear Thursday has more to do with the rise of an activist conservative judiciary than with the norms of the Senate. From the moment that five conservative justices issued their ruling in Bush v. Gore, liberals and Democrats realized they were up against forces willing to achieve their purposes by using power at every level of government. When the Bush v. Gore majority insisted that the principles invoked to decide the 2000 election in George W. Bush’s favor could not be used in any other case, they effectively admitted their opportunism. Dec. 12, 2000, led inexorably to Nov. 21, 2013.

Bush v. Gore set in motion what liberals see as a pernicious feedback loop. By giving the presidency to a conservative, the five right-of-center justices guaranteed that for at least four years (and what turned out to be eight), the judiciary would be tilted even further in a conservative direction.

Bush was highly disciplined in naming as many conservative judges as he could. His appointments of Chief Justice John Roberts and Associate Justice Samuel Alito bolstered the Supreme Court’s conservative majority. The court later rendered such decisions as Citizens United, which tore down barriers to big money in politics, and Shelby County v. Holder, which gutted a key part of the Voting Rights Act. Both, in turn, had the effect of strengthening the electoral hand of conservatives and Republicans.

With the conservatives’ offensive as the backdrop, Senate Democrats and liberals on the outside revolted in 2005 against the Republican threat to use the nuclear option when the GOP controlled the Senate. Progressives felt they had no choice but to throw sand into the gears of a juggernaut.

Liberals said things eight years ago that are being used by conservatives to accuse them of hypocrisy now. I didn’t have to look far for an example of what they’re talking about.

In a column in March 2005, I called the GOP’s effort to speed the confirmation of conservative judges “a blatant effort to twist the rules” that ignored “the traditions of the Senate.” I might take back the “traditions of the Senate” line, a rhetorical attempt to call conservatism’s bluff. But what animated my argument then is the same concern I have now: This era’s conservatives will use any means at their disposal to win control of the courts. Their goal is to do all they can to limit Congress’s ability to enact social reforms. At the same time, they are pushing for measures — notably restrictions on the right to vote — that alter the electoral terrain in their favor.

And it is simply undeniable that in the Obama years, conservatives have abused the filibuster in ways that liberals never dreamed of. Senate Majority Leader Harry Reid cited the Congressional Research Service’s (CRS) finding that in our history, there have been 168 cloture motions filed on presidential nominations. Nearly half of them — 82 — happened under Obama. According to CRS, of the 67 cloture motions on judicial nominees since 1967, 31 occurred under Obama. Faced with this escalation, senators long opposed to going nuclear, among them Reid and California’s Dianne Feinstein, concluded it was the only alternative to surrender.

Republicans gave the game away when all but a few of them opposed Obama’s three most recent appointments to the Court of Appeals for the D.C. Circuit not on the merits but by accusing the president of trying to “pack the court.” In fact, Obama was simply making appointments he was constitutionally and legislatively authorized to make. His nominees were being filibustered because they might alter the circuit court’s philosophical balance. The GOP thus demonstrated beyond any doubt that it cares far more about maintaining conservative influence on the nation’s second most important judicial body than in observing the rules and customs of the Senate.

This is why the Senate Democrats’ action will, in the end, be constructive. The first step toward resolving a power struggle is to recognize it for what it is. The era of denial is finally over.

 

By: E. J. Dionne, Jr., Opinion Writer, The Washington Post, November 24, 2013

November 25, 2013 Posted by | Filibuster, Senate | , , , , , , , | 1 Comment

“They Had A Choice”: Did Frustrated Mainstream Republicans Help Pull The Nuclear Trigger?

The big mystery of today’s majority-imposed rules change in the Senate is: What happened to the deal-making Republicans?

There’s nothing much to figure out on the Democratic side. It was clear to most observers that the three-seat blockade of the D.C. Circuit Court was solidly over the line separating Democratic senators’ individual preference for maintaining the filibuster and their party interest in seating a Democratic president’s choices for the federal bench. Democrats believed that they had no choice but to proceed.

Republicans, however, certainly did have a choice. After all, in the short run, they’re clearly worse off by this change than they would be had they used the filibuster far more selectively. That was enough to get them to compromise the last time this happened. So why didn’t they hold back again?

One possibility is that they simply miscalculated, believing that Senate Majority Leader Harry Reid (D-Nev.) was bluffing. If that was the case, however, they could have backed off at the last second.

A second possibility is that they really wanted to eliminate the filibuster, and that they believed that the cost to the Democrats for pulling the trigger was great enough that it was worth the potential three years of majority-confirmed President Obama nominees. That’s possible, although it’s very hard to believe that voters will care at all, and Republican arguments (court-packing!) did not appear designed to appeal to those who might have been willing to condemn Democrats for a “power-grab.”

So here’s a third possibility. The problem with the summer compromise is that it was horrible for deal-making Republicans. The deal essentially said: Republicans will continue to filibuster nominations, but will supply enough votes for almost all of them so that the filibusters will be defeated. But that meant that in practice a handful of Republicans were forced to tag-team their votes, making sure that Democrats always had 60. What’s more, the shutdown fight — which began right after the Senate deal was struck — revealed that radical Republicans led by Sen. Ted Cruz (R-Tex.) were eager to scapegoat those same deal-making Republicans. That raised the cost of the executive branch nominations agreement for tag-teamers such as Sens. Lamar Alexander (R-Tenn.), Bob Corker (R-Tenn.) and John McCain (R-Ariz.). In other words, the summer deal might or might not have been stable, but it certainly couldn’t hold in a world in which the majority of Republican senators are looking for ways to separate themselves from mainstream conservatives, and then using that separation to attack them.

Those deal-making Republicans did have another option; They could have just abandoned the radicals. But over what principle? After all, the situation here is that it’s the radicals, not the mainstream conservatives, who want to hold up all these nominations. One way to look at what happened today is that the deal-makers were getting out of the way and allowing the radicals to lose. If the outcome is the same — Obama’s judicial picks get confirmed — then why should the deal-makers ask for the blame for it?

We don’t know yet, and perhaps we won’t, but my guess is that the way Cruz and other Republican radicals acted during the shutdown is what explains the difference between a successful deal in the summer and today’s nuclear action.

 

By: Jonathan Bernstein, The Washington Post, November 21, 2013

November 22, 2013 Posted by | Federal Judiciary, Filibuster | , , , , , , , | Leave a comment

“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

November 2, 2013 Posted by | Birth Control, Reproductive Rights | , , , , , , , | Leave a comment

“It’s Time For The Nuclear Option”: GOP Madness And Unprecedented Obstructionism Pushes Senate To Breaking Point

In July, with Senate Democrats prepared to execute the “nuclear option,” the chamber reached an agreement that calmed the waters. Indeed, at the time, it seemed like quite a breakthrough for routine governance – the Senate was allowed to hold confirmation votes, the Consumer Financial Protection Bureau was allowed to function, the EPA was allowed to get a new chief, and the National Labor Relations Board was allowed to go back to work.

It was nice while it lasted.

Today, after a brief respite in the confirmation wars, Senate Republicans re-embraced mindless obstructionism again. In fact, they did so twice.

Senate Republicans on Thursday blocked Rep. Mel Watt’s nomination to serve as one of the nation’s top housing regulators.

The Senate voted 56-42 to end debate on Watt’s (D-N.C.) nomination to lead the Federal Housing Finance Agency (FHFA), but 60 votes were needed to overcome a Republican filibuster.

Republicans didn’t have any specific objections to Watt, but since they preferred the current official at FHFA, GOP senators refused to allow the chamber to vote on Watt’s nomination. It’s the first time in 170 years in which a sitting member of the House lost a confirmation vote in the Senate.

Shortly after blocking a qualified African-American man, Senate Republicans then blocked a qualified woman.

Senate Republicans blocked Democrats attempt to vote on whether to confirm Patricia Millett as a U.S. Circuit Judge for the D.C. Circuit, renewing Democratic conversations of possible rule changes.

On Thursday, the Senate voted 55-38 against ending debate on her nomination. Democrats needed at least 60 votes to overcome the Republican filibuster.

Again, Republicans had no substantive objections to Millett whatsoever, but simply don’t want President Obama to fill any of the D.C. Circuit vacancies with anyone.

It’s against this backdrop that Sen. Rand Paul (R-Ky.) intends to block a vote on Janet Yellen’s nomination to lead the Federal Reserve, and Sens. Lindsey Graham (R-S.C.) and John McCain (R-Ariz.) intend to block all confirmation votes altogether until someone pays attention to their Benghazi conspiracy theories.

Or put another way, Republican obstructionism has once again gotten completely out of control – there is simply no precedent in American history for tactics like what we’re seeing today – and if Democrats aren’t considering drastic measures, I’d be very surprised.

The status quo, as evidenced today, is a madness. It’s plainly unsustainable.

 

By: Steve Benen, The Maddow Blog, October 31, 2013

November 2, 2013 Posted by | GOP | , , , , , , , , | Leave a comment

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