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.

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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.

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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.

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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.

PFAW

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.
 

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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.
 

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Ornstein: Senate GOP Causing "Damage to the Vital Interests of the United States"

The latest condemnation of the Senate GOP's dangerous obstruction against executive and judicial nominees comes from Norman Ornstein, a resident scholar at the conservative American Enterprise Institute. In a column published in Roll Call, Ornstein blasted Senate Republicans for the damage they are doing to our country.

Last week, Republicans blocked a vote on the nomination of Caitlin Halligan to serve on the D.C. Circuit Court of Appeals, setting a new standard for nominees to that court that will be virtually impossible for any president of either party to meet. Just two days later, they blocked a confirmation vote for Richard Cordray to head the Consumer Financial Protection Bureau, admitting that they did so not because of any problems with him but because they do not like the law creating that Bureau. Next, two days ago, Senate Democrats tried to overcome Republicans' obstruction of ambassadorial nominees, with mixed results. Ornstein writes:

The good news on Monday was that the Senate, in a show of broad bipartisan support, confirmed Norm Eisen to be the U.S. ambassador to the Czech Republic.

Eisen had been in the post for the past year on a recess appointment, and by all accounts, Czech and American, had been doing an exemplary job protecting and advancing American interests and values in a country that is a critical ally to the United States and an important commercial and trading partner. Why the recess appointment? Because Sen. Chuck Grassley (R-Iowa) decided well over a year ago that Eisen, while serving in the White House, had not been truthful to the Senator's staff over his role in the dismissal of the inspector general of AmeriCorps. Never mind that a voluminous record showed that Eisen had not dissembled, that the entire board of AmeriCorps, left to right, Democrats and Republicans, supported the dismissal, and the actions were upheld in two federal courts. Grassley would not budge.

Senate Democrats filed a successful cloture petition and Eisen was confirmed by voice vote. But the obstruction continued with a politically motivated filibuster of Mari Carmen Aponte to be ambassador to El Salvador. Aponte is now serving under a recess appointment, which expires at the end of the month.

The ostensible reason to oppose her? Decades ago Aponte had a boyfriend who might have had ties to Fidel Castro's government. Never mind that Senators had access to her FBI file — and that she has had a succession of top-secret clearances after exhaustive security checks. Aponte did not fare well — she fell 11 votes shy of the 60 needed once again to overcome cloture.

In a different world — i.e., the world the United States knew from 1789 until a few years ago — her 49-37 margin would have meant a comfortable confirmation. No more. Filibusters used to be rare events for bills, rarer for executive confirmations, rarer still for judicial nominations. Now they are more than routine; they are becoming the norm. Holds were not as rare, but the use of holds to block multiple nominees for not weeks or months but years or until death, were not typical; now they are the standard.

Citing other ongoing examples of Republican senators sabotaging ambassadorial nominations to countries key to U.S. security, Ornstein sums up the situation:

This goes beyond partisan polarization to damage to the fabric of governance and worse — to damage to the vital interests of the United States. ...

[S]hame on a Senate which went from blocking a well-qualified nominee for an appeals court judgeship via filibuster to blocking a superbly qualified nominee for the consumer bureau, to yet another in a series of ambassadors stymied via holds and filibusters. This is no way to govern.

PFAW

Can the filibuster be fixed?

The threat of filibuster is holding up Senate business more than ever before, and Senators are at odds over whether to do away with or amend the rule that’s causing so much trouble.

People for Executive Vice President Marge Baker joined a panel yesterday at American University’s Washington College of Law to discuss what can be done to loosen up the gridlock in the deliberative body.

Baker, Washington Post columnist Ruth Marcus and Cato Institute scholar John Samples discussed several proposals that have been put forward to fix the filibuster problem, from limiting lawmakers to a “one bite” rule that would not permit filibusters of both motions to proceed to a bill as well as on the merits of the bill itself to reducing the number of votes needed to invoke cloture to scuttling the rule altogether. But they kept coming back to one point: what’s causing the gridlock isn’t the filibuster rule itself but its increasing use as an obstructionist tactic.

“The problem is not its existence; the problem is its overuse,” Marcus said.

People For the American Way has found that Republicans in the 111th Congress are holding up executive branch nominations at an unprecedented rate, and that they are more than ever invoking the cloture process to delay votes whose outcome they know they can’t change.

“It really is a problem. It really is causing government to break down,” Baker said, “The cloture vote is being used to an unprecedented degree, and the degree to which it’s being used primarily for obstruction, is really a serious problem.”

Here’s a look at the rate of cloture filings in the past 90 years:


And a look at filibuster threats to executive nominees from 1949 through March of 2010:

Senators Jeanne Shaheen and Tom Harkin have introduced a measure to phase out the filibuster in a series of steps, eventually ending in a Senate where votes can pass with a simple majority. Senator Tom Udall has proposed letting the Senate adopt new rules--and make a choice about the filibuster--at the start of every new Congress. But the solution may lie not in taking away the power of the minority to have some leverage in matters that are truly important (nobody likes that idea when they’re in the minority), but in limiting the situations where the filibuster can be used. Marcus suggested taking the option off the table for executive nominations, limiting its use in judicial nominations, and limiting the minority to one filibuster per law. Baker suggested changing the rule that provides for 30 hours of post-cloture debate before a matter can be voted on, which would save enormous time, particularly where the result is a foregone conclusion.

Though, whatever the form that filibuster rules take, I’m pretty sure we can count on the GOP to come up with creative ways to keep on stalling business.


Baker, Samples, Marcus, and moderator William Yeomans at American University's Washington College of Law

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