95 Senate Roll-Call Votes While Lynch Waits for Hers

Loretta Lynch's nomination has been languishing on the Senate floor since February 26. In that time, Majority Leader Mitch McConnell has found time to hold 95 roll call votes but somehow he just can't fit in a vote on the Lynch nomination. Why? Because he's holding Lynch's nomination hostage on a totally unrelated item that has nothing to do with her qualifications to be Attorney General.

Having been thoroughly vetted, Lynch was approved by a bipartisan majority of the Judiciary Committee seven weeks ago. She could and should have confirmed within a few days, as is customary for Attorney General nominees. Yet that hasn't happened. In fact, she has been waiting for a floor vote longer than the seven most recent attorneys general combined, a landmark she passed even before the Senate's two-week spring recess.

Since Lynch has been waiting for a floor vote, the Senate has taken 95 roll call votes. These have covered five bills, four executive nominations, one judicial nomination, one resolution of disapproval of an NLRB action, and one resolution on the budget. That last one is particularly worthy of note, because several dozen of the roll call votes were on non-binding amendments to a non-binding budget resolution.

McConnell held a veto override vote on the Keystone Pipeline bill, a major priority of some important Republican donors but not connected to the Lynch nomination. He held a roll call vote to repeal the individual mandate of the Affordable Care Act, a major priority of the Tea Party base that had no chance of ever becoming law, and which has no connection to confirming Lynch. And he has held multiple roll call votes to force Democrats to accept abortion restrictions on women who are victims of human trafficking ... which also has nothing to do with Lynch, except that McConnell has chosen that particular item as the ransom to demand in exchange for releasing his hostage.

McConnell needs to drop this ridiculous demand and allow a vote. The position of Attorney General of the United States is simply too important for such nonsense.


Not Even GOP's Own Witnesses Oppose Loretta Lynch

Today was the second and final day of Senate Judiciary Committee hearings for Loretta Lynch's nomination to be attorney general. Today's session was devoted to witnesses invited by Republican and Democratic senators to help the committee members make the very serious decision as to whether to Lynch is qualified.

Most of the Democrats' witnesses praised Lynch based on their personal and professional experiences with her over the years. But the Republican witnesses had no such personal or professional experience with the nominee, nor did they take issue with her qualifications. In fact, they didn't have much to say about Lynch at all. Instead, they spent their time criticizing President Obama and Attorney General Eric Holder.

But what did they think of Lynch? The committee's ranking Democrat decided to find out: Senator Patrick Leahy asked all of the witnesses, Republican and Democratic alike, to raise their hand if they actually opposed Lynch.

Not one did.

So the GOP couldn't find even one person who could testify that Lynch isn't qualified.

That's very telling. As PFAW explained in our letter to the Senate supporting Lynch, President Obama has made a nomination with bipartisan support who Senate Democrats and Republicans alike can support.

At the conclusion of Lynch's hearings, it's clear that she deserves a timely committee vote and confirmation by the full Senate.


Lame Duck Session Confirmations: PFAW Member Telebriefing

As Congress returns for the lame duck session after the midterm elections, People For the American Way hosted a member telebriefing on Monday on the critical work that needs to be completed this session to fill court vacancies. The call was kicked off by PFAW Director of Communications Drew Courtney who underscored the significant number of judicial and executive nominations the Senate faces, including President Obama’s new Attorney General nominee, Loretta Lynch.

PFAW members were joined on the call by Josh Hsu, Senior Counsel on the Senate Judiciary Committee, who shared Committee Chairman Sen. Patrick Leahy’s commitment to moving forward on nominees through the lame duck session. He pointed out that much of the GOP obstruction of judicial nominees occurs under the public radar, but it has an enormous impact.  If the judicial nominees who can be confirmed by year’s end are stalled instead, that will create a substantial and needless backlog in the next Congress that will delay judicial nominees down the line. 

Hsu also gave his thoughts on how Republican control of the Senate may impact judicial nominations. Hsu pointed out that the three most recent two-term presidents all faced opposition Congresses in the final two years of their presidencies, but all continued to move forward on many nominations.

PFAW Executive Vice President Marge Baker and Senior Legislative Counsel Paul Gordon emphasized the importance of local activists keeping up the momentum around judicial nominations, both during the lame duck and over the next two years. Gordon called on PFAW activists to continue contacting their senators and writing to their local papers. When senators hear from constituents on an issue or see articles written in their local newspaper, Gordon said, they pay attention. Grassroots activism is critical to making sure senators get the message on the importance of the courts, and of confirming nominees before the end of the year.

You can listen to the full audio of the telebriefing here:


Welcome Back, Senate, It's Time to Get to Work

Today marks the beginning of the lame duck session of Congress, and the Senate has a lot to do this month and next to meet its basic constitutional obligations to ensure that the federal government is actually able to function. While that entails headline-grabbing matters like passing a spending resolution to keep the government open, it also entails confirming nominees to critically important executive and judicial positions. For instance, a confirmation vote on Surgeon General nominee Vivek Murthy, which has been delayed for months, is long overdue. The Senate also has time to fill vacancies at the National Labor Relations Board, the Department of Housing and Urban Development, the Equal Employment Opportunity Commission, and the Department of Education, among others.

And the Senate can and should vote on at least 24 district court judicial nominees. Sixteen district court nominees are already pending on the Senate floor, all of whom could have easily had a vote back in September, if not earlier. Another eight district court nominees are scheduled for committee approval tomorrow, although many people expect Republicans to demand a delay until next week.

But even with that committee delay, history shows there should be more than enough time in the next few weeks to confirm all of these district court nominees.

President George W. Bush's confirmed district nominees waited on average only a month after committee approval before getting a floor vote. In fact, half of Bush's district court judges waited only three weeks or less after committee approval, a figure that has plummeted to 2% for President Obama's district court judges. Treating Obama's nominees like Bush's would give the Senate plenty of time to do its job.

It's also worth noting that in the fall of 2008, at the twilight of the Bush presidency, the Democratic Senate still made a point of ensuring votes on his district court nominees. On September 26, 2008, the Senate confirmed by unanimous consent ten district court nominees who had been cleared by the Judiciary Committee only the day before. In fact, the Judiciary Committee had voted on them all within two weeks of their hearing, half of them within two days of their hearing. Republicans did not move to block or delay those nominees.

So don't let anyone tell you there isn't time for the Senate to confirm nominees during this lame duck session and still get its other work done. It is only the double standard that Senate Republicans apply to President Obama's nominees that will require Democrats to jump through so many procedural hoops in order to hold confirmation votes. But this year or next, the GOP's unceasing obstruction tactics should not be accepted as business as usual.


Senators Should Watch This Video from the Federal Judiciary

The federal judiciary today released a short educational video on the right to counsel that every member of the Senate should see ... especially those who participated in or acquiesced to the smear campaign against Debo Adegbile earlier this year. Adegbile, who had been nominated to head the Civil Rights Division at the Justice Department, was attacked because he was involved at the appeals stage in the representation of someone who had been convicted of killing a police officer. The Right Wing whipped up opposition to his nomination, linking him with his client and attacking him for providing representation at all. Every Republican present voted to filibuster Adegbile, as did seven Democrats.

This assault on the right to counsel, a fundamental constitutional right that undergirds our system of justice and protects the freedoms of all Americans, was widely condemned. For instance, more than 1,000 law professors wrote a letter to the Senate explaining the terrible ramifications of its action.

Released by the Administrative Office of U.S. Courts, today's video isn't about judicial nominations, and it wasn't made for senators. But they should watch it anyway. Too many of them need to be reminded that, as federal Magistrate Judge Jonathan Feldman of New York explains:

The right to counsel is really the fundamental cornerstone of our justice system. Imagine a system of justice where you don't have the right to a lawyer, where you could simply be accused of doing something wrong and taken right to prison.

The video also explains why people who don't commit crimes should nevertheless care about the right to counsel:

[Federal Judge Raner Collins of Arizona:] Even though you will never commit a crime yourself, you still may be accused of a crime. It's easy to accuse someone of doing something wrong.

[Sigmund Adams, former Assistant Federal Public Defender in Maryland]: These things are really about protecting all of us, not just people who are accused. They're about protecting all of us from an overreach by our government.

[Magistrate Judge Feldman:] You want to have confidence in our justice system, and if you have a lawyer on both sides, and both sides are well represented, that gives the public confidence that the result that comes out of that trial was fair and just.

Across America, hardworking attorneys are engaged in the valuable public service of representing indigent or highly unsavory people accused of crimes. Like John Adams defending British soldiers charged with killing Americans in the Boston Massacre, they embody the best of our nation's constitutional values.

Whether they have been nominated for an executive or a judicial position, senators should consider their service as a mark in their favor, not against them.


Contempt for the Constitution Shows in Opposition to Adegbile

There are few ideas more quintessentially American than this: If the government is going to use its awesome power to imprison and execute you or a member of your family, it must do so in a way that complies with the safeguards set forth in the Bill of Rights. That basic tenet of the United States Constitution is vital to the preservation of liberty for all Americans.

Whether it's an innocent person in the crosshairs or a heinous criminal, these protections must apply. After all, if those in power have the right to ignore the Constitution in order to imprison or even execute "the bad guys," they can use the same loopholes to go after the rest of us. That's one reason why all criminal defendants deserve quality legal representation: to protect not just the rights of the innocent, but of the guilty, as well, because that protects us all. The Bill of Rights contains no exemptions for bad people.

Unfortunately, that ideal was thrown out the window in the U.S. Senate today in a triumph of demagoguery, when a majority voted to continue the filibuster of Debo Adegbile to head the Civil Rights Division at the Justice Department. When he was with the Legal Defense Fund of the NAACP, he was involved in the representation of Mumia Abu-Jamal, who had previously been convicted of killing a police officer. After Abu-Jamal's conviction and sentence to death, LDF represented him in court and argued that the sentence had been based on unconstitutionally faulty jury instructions. The courts agreed, and his sentence was altered to life in prison.

And for this representation, the Right Wing whipped up opposition to Adegbile's nomination, linking the lawyer with his "cop-killer" client and condemning him for providing representation at all. Every Republican present voted to filibuster Adegbile, as did seven Democrats.

What would they have wanted? Do we want to give courts carte blanche to have Americans executed without adhering to constitutional requirements? The same Republicans and Far Right figures who peddle the paranoid fantasy that President Obama is a dictator who is destroying our constitutional freedoms should take a long look in the mirror and ask themselves what kind of world we would live in if we simply tossed the Bill of Rights out the window when we don't like a particular criminal defendant. And so should the seven Democrats who joined them today.


D.C. Circuit Crimps President's Recess Appointment Power

Two weeks ago, on January 25th, 2013, a panel of the United States Circuit Court of Appeals for the D.C. Circuit, consisting of three judges appointed by Republican presidents, unanimously invalidated a decision by the National Labor Relations Board. In Noel Canning v. N.L.R.B., the D.C. Circuit held that the Board did not have a sufficient number of members, or quorum, to make binding decisions because three of the five Board members were appointed through an improper use of the Constitution's Recess Appointments Clause. This decision calls into question many of the NLRB's actions since the three recess appointments were made last year.

Although the decision by the D.C. Circuit was specific to the NLRB, the rationale for the decision, if applied to other recess appointments, could result in chaos throughout the federal government. Several commentators have noted that decisions issued by the Consumer Financial Protection Bureau over the last year could also be subject to invalidation, since Director Richard Cordray was recess appointed at the same time as the NLRB appointees.

Norman Ornstein of the American Enterprise Institute lambasted the D.C. Circuit's ruling as "a remarkable exercise of judicial overreach and arrogance." Ornstein highlighted the difference between President Obama's use of recess appointments from that of his predecessors:

I am not a fan of excessive use of recess appointments, especially when they are made to avoid a major controversy or the simple inconvenience of a possible negative vote in the Senate. But those kinds of recess appointments were made more frequently in the Reagan, Clinton and George W. Bush years . . . . Our current president has issued few recess appointments and did so only when faced with unprecedented filibusters against qualified and widely admired nominees who were opposed because Republicans wanted to emasculate their agencies in violation of common practice and the fiduciary duty of lawmakers to allow laws to be administered and implemented.

A report by the Congressional Research Service released earlier this week found that since January 1981, hundreds of recess appointments by Presidents Ronald Reagan (232), George H. W. Bush (78), Bill Clinton (139), George W. Bush (171), and Barack Obama (32) could have been deemed improper under Noel Canning's reasoning. In total, the report found that least 652 recess appointments were either made outside the narrow window the Court defined for making recess appointments or were made in a recess in which the vacancy did not occur—neither of which would be allowed under the judges' ruling.

In 2004, President George W. Bush made recess appointments of two controversial judges to federal circuit courts: Charles Pickering to the Fifth Circuit and William Pryor to the Eleventh Circuit. Since these recess appointments occurred long after the Senate session in which the vacancy occurred, at least two dozen judicial opinions authored by these judges could be vulnerable to invalidation were Noel Canning applied.

The NLRB can still request a rehearing en banc from the D.C. Circuit or, more likely, appeal to the Supreme Court. If that's the case, the Court is likely to consider the question, not only because of the implication for the separation of powers, but because the Eleventh Circuit interpreted the Recess Appointments Clause differently in a 2005 case. In addition, challenges to President Obama's recess NLRB appointments are still pending in other circuits. The NLRB's Chairman, Mark Gaston Pearce, has remarked that the Board will continue its work while the litigation continues. But until we have a final decision on the matter, a pall has been cast upon all recess appointments and the decisions made by such appointees.


Recess Appointments Ruling Shows Consequences of GOP Obstructionism

Earlier today, the DC Circuit issued a decision in case challenging President Obama's recess appointments of three of the five members of the National Labor Relations Board. This is one of several lawsuits challenging these recess appointments, as well as that of Richard Cordray to lead the Consumer Financial Protection Board. While much of the focus will be on the fact that the court ruled against President Obama, this is just one part of a much larger picture: None of this litigation would be occurring but for nonstop and unprecedented obstructionism.

The president had made nominations to the NLRB in early 2011. But Senate Republicans prevented the Senate from holding yes-or-no confirmation votes, which meant that beginning last January, the NLRB would no longer have enough members to have a quorum. In other words, Republicans – who did not have the votes to change our federal labor laws legislatively – nevertheless could undermine an important agency dedicated to protecting the rights of labor. All they had to do was prevent the Senate from doing its job.

In the case of Richard Cordray, Republicans sought to accomplish through obstruction what they had failed to do legislatively. They opposed the creation of a strong Consumer Financial Protection Board during the first years of Obama's presidency, but they lost that battle. The Board was created, but it could not perform many of its vital consumer protection responsibilities without a director. Senate Republicans admitted that they had no problem at all with Richard Cordray. They simply refused to confirm him because they opposed the very existence of the Board he was asked by the president to run. As long as they could keep him off the Board, consumers would remain unprotected by many aspects of the new reform law.

The Senate should have been able to vote on all these confirmations, both to the NLRB and to the CFPB. But Senate Republicans chose to prevent those votes as part of their overall strategy of obstructing anything or anyone supported by President Obama. That harmful sabotage of one of the Senate's basic responsibilities is what led to the recess appointments.

It is worth noting that yesterday, the president announced that he will renominate Cordray. Republicans should not repeat the mistakes of the past: Whether they support him or not, they should allow the CFPB to do its job. And that can only happen if they allow a confirmation vote to occur.


President Sheds Light on Judicial Nominations Crisis, Urges End to Senate Obstruction

In his State of the Union address last night, President Obama addressed the unprecedented Senate obstruction of judicial and executive branch nominees and urged senators to end the nominations gridlock.

Since Obama became president, the Senate GOP has conducted a steady campaign of obstruction against even entirely uncontroversial judicial and executive nominees. The statistics are unmistakable. Under President Bush, circuit court nominees waiting an average of 30 days for a vote from the full Senate after approval from the Judiciary Committee. Under President Obama, they have waited an average of 137 days. And district court nominees, who have traditionally been quickly and easily confirmed except under the most extraordinary circumstances have waited an average of 90 days for a Senate vote, compared to just 22 days under President Bush. The result has been a historic vacancy crisis in the federal courts, with over ten percent of seats vacant or soon to be vacant.

PFAW’s Marge Baker issued a statement last night echoing the president’s call for an end to the obstruction:

“President Obama is right to call for an end to such irresponsible and politically-motivated obstruction of his nominees,” said Marge Baker of People For the American Way. “For too long, the GOP has gotten away with its destructive agenda of obstruction, which has left more than 1 out of 10 federal judgeships vacant and resulted in unconscionable delays for Americans seeking their day in court. Laws exist to protect all of us, and courts are where the 99% and the 1% stand as equals. But even the best of laws don’t count for much if there aren’t enough judges to enforce them. Republicans in the Senate must start doing the job the American people hired them to do. The American courts are no place for partisan politics.”

We hope that the Senate takes the message to heart.


Obama Moves to Protect Workers and Consumers in Face of GOP Obstruction

Faced with uncompromising obstruction from Senate Republicans, President Obama made four recess appointments today to staff agencies that protect American workers and consumers.

First, the president appointed former Ohio attorney general Richard Cordray to head the Consumer Financial Protection Bureau, a watchdog post that has been vacant since the agency began operations last summer. Obama nominated Cordray in July, but met with unyielding opposition from Senate Republicans, who refused to even allow a confirmation vote on any person to the post unless the agency was first severely weakened. Announcing the recess appointment in Ohio, Obama said:

Now, every day that Richard waited to be confirmed -- and we were pretty patient. I mean, we kept on saying to Mitch McConnell and the other folks, let's go ahead and confirm him. Why isn't he being called up? Let's go. Every day that we waited was another day when millions of Americans were left unprotected. Because without a director in place, the consumer watchdog agency that we've set up doesn't have all the tools it needs to protect consumers against dishonest mortgage brokers or payday lenders and debt collectors who are taking advantage of consumers. And that's inexcusable. It's wrong. And I refuse to take no for an answer.

With Cordray installed at his new post, the CFPB – the brainchild of Massachusetts Senate candidate Elizabeth Warren – will finally be able to fully take on its job to protect consumers from harmful financial practices.

Later in the day, President Obama announced that he will also be making recess appointments to fill three seats on the National Labor Relations Board, another target of relentless Republican obstruction. If Republicans continued to block the president’s nominees to the board, it would lose its quorum – and its power to issue new rulings – midway through this month. The GOP’s grudge against the board resulted in its operating without a quorum from the end of 2007 through the beginning of 2010. The more than 500 decisions it made during that time were later thrown out by the Supreme Court.

The president had no choice but to make recess appointments to ensure that these important agencies can do their jobs, whether the Senate GOP wants them to or not.