GOP Forces Cloture Petition on 100th Obama Judicial Nominee

Yesterday, in what has become standard operating procedure in the era of Republican obstruction, Senate Majority Leader Reid had to file a cloture petition to end the silent filibuster of a judicial nominee. Like many others who have required cloture, 11th Circuit nominee Jill Pryor doesn't face any real opposition. In fact, she was approved unanimously by the Judiciary Committee.

Pryor is the 100th Obama judicial nominee to need a cloture petition (as compared to 18 for the entire Bush Administration). (Since some cloture petitions before this year were cleared up without the need to hold a cloture vote, Pryor will be the 76th Obama judicial nominee rather than the 100th to have a cloture vote.)

In 2014, not one judicial nominee has been able to get a confirmation vote without first needing a cloture vote to break a Republican filibuster. Think about it: Republicans have refused to consent to even one judicial confirmation vote this year. The great progress Americans have seen during the past few months in getting judges confirmed has been in spite of GOP obstruction, not because of GOP cooperation.

Not that they have any problems with the nominees, most of whom are ultimately confirmed with overwhelming and often unanimous Republican support. So rather than confirming blocks of nominees in quick voice votes or by unanimous consent, the Senate is forced to hold time-consuming roll-call cloture and confirmation votes for each individual nominee (often with hours of time required between the two votes). At least during President Obama's first term, a number of cloture petitions were vitiated, meaning that Republicans eventually allowed a confirmation vote without the need for a cloture vote. But that doesn't happen anymore.

The Republican goal is what it has been since President Obama took office: Gum up the works and keep vacancies open as long as possible in order to minimize the president's impact on the nation's judiciary, and in order to maximize opportunities for a Republican president to fill the bench with right-wing ideologues. Senate Democrats are right to fight the obstruction and to allow the Senate to fulfill its constitutional responsibility of keeping our nation's courts functioning.

Just imagine the damage to our courts if Republicans control the Senate – and the confirmation process – during President Obama's last two years.

PFAW

D.C. Circuit Old Guard Strikes Down Key Obamacare Subsidies Provision

A divided panel of the D.C. Circuit this morning struck down a key provision of the Affordable Care Act that allows subsidies for millions of people purchasing health insurance on government-run exchanges. The case is one of four cases on the same issue, strategically planted in various places around the country (Washington DC, Virginia, Oklahoma, and Indiana). The intent is apparently to get a split in circuit court opinions, so the Supreme Court will be more likely to take the case and, the proponents hope, deliver a crippling blow to Obamacare. (Unlike the millions of Americans who would be the real victims if this scheme succeeds, its proponents presumably have access to health insurance.) Today's ruling is the first among the four circuits.

Opponents of healthcare have an argument that might look appealing on the surface but doesn't pass the smell test. Section 1311 of the ACA says states should set up insurance exchanges. Section 1321 of the Act says the federal government can set one up if a state doesn't. The statute also says how to calculate the amount of a subsidy available for less well-off people getting health insurance through an exchange. It's based on the amount the person pays for the insurance s/he is enrolled in through an exchange "established by the state under [section] 1311" of the ACA. It's on the "by the state" language that the ACA's opponents hang their hat.

The anti-ACA people say the text is clear: The subsidy is unavailable to those who are getting their insurance in states where the federal government has set up the exchange. Judge Thomas Griffith and Senior Judge Raymond Randolph (nominated by Bush-43 and Bush-41, respectively) grabbed on to this argument, striking down subsidies for Americans living in states where politicians have chosen not to set up their own state exchanges.

Senior Judge Harry Edwards (a Carter nominee) dissented, pointing out that this was clearly not the intent of Congress. He explained the case quite plainly:

This case is about Appellants' not-so-veiled attempt to gut the Patient Protection and Affordable Care Act ("ACA").

...

Appellants' proffered construction of the statute would permit States to exempt many people from the individual mandate and thereby thwart a central element of the ACA. As Appellants' amici candidly acknowledge, if subsidies are unavailable to taxpayers in States with HHS-created Exchanges, "the structure of the ACA will crumble." It is inconceivable that Congress intended to give States the power to cause the ACA to "crumble." [emphasis added, internal citation removed]

Judge Edwards continues, shattering the majority's argument that their interpretation fits with congressional intent:

Apparently recognizing the weakness of a claim that rests solely on [one particular section of the Affordable Care Act], divorced from the rest of the ACA, Appellants attempt to fortify their position with the extraordinary argument that Congress tied the availability of subsidies to the existence of State-established Exchanges [rather than federal ones] to encourage States to establish their own Exchanges. This claim is nonsense, made up out of whole cloth. There is no credible evidence in the record that Congress intended to condition subsidies on whether a State, as opposed to HHS, established the Exchange. Nor is there credible evidence that any State even considered the possibility that its taxpayers would be denied subsidies if the State opted to allow HHS to establish an Exchange on its behalf.

The majority opinion ignores the obvious ambiguity in the statute and claims to rest on plain meaning where there is none to be found. In so doing, the majority misapplies the applicable standard of review, refuses to give deference to the IRS's and HHS's permissible constructions of the ACA, and issues a judgment that portends disastrous consequences.

Those disastrous consequences are not the intent of Congress, but they are the intent of far right zealots.

The Justice Department has already said it will seek an en banc review by all eleven judges of the D.C. Circuit, where President Obama's opponents have less likelihood of winning than would have been the case a year ago. In case you were wondering why Senate Republicans pulled out all the stops last year and declared they would not allow President Obama to fill any of the three then-existing vacancies on the D.C. Circuit, cases like this are why. The last thing they wanted was a balanced, non-ideological court.

For anyone who cares about healthcare, courts matter.

PFAW

Barney Frank: This Year’s Midterm Elections Define Our Courts

In an op-ed printed in the Portland Press Herald this weekend, retired congressman Barney Frank offers a sharp critique of the far right Supreme Court under John Roberts. Explicitly noting the importance of the Court in defining law that affects all citizens, Frank makes clear not only that courts matter, but everyday citizens have a hand in how these courts are shaped.

Reviewing the impact of recent Supreme Court decisions — from overturning “more than 100 years of federal and state efforts to regulate the role of money in campaigns” to declaring that corporations have the right to religious freedom under RFRA—Frank states that “the court has ended this term with a barrage against laws it does not like” (emphasis added).

He continues,

…The Supreme Court is now strongly inclined to impose conservative ideology via Constitutional interpretation on a broad range of public policy. It is true that Kennedy and to some extent Roberts occasionally deviate from this, but Justice Samuel Alito has surpassed even Justices Antonin Scalia and Clarence Thomas in his ideological purity.

The relevance of this to the next two elections is very clear. Four of the sitting justices are in their late 70s or older. This means that there is a strong possibility that President Obama will have a chance to appoint another justice before his term expires, but his ability to do so will be determined not simply by the health of the justices in question, but by the composition of the U.S. Senate. The increasing partisanship in the Senate, the continued virulent influence of the tea party and recent history strongly suggest that even if a vacancy occurs, Obama will be prevented from filling it (emphasis added).

Frank refers to the unceasing Republican obstructionism and argues courts are critical for defining laws that affect Americans on a daily basis, highlighting the importance of this year’s midterm elections. As he concludes in this piece,

This makes it highly likely that among the issues that will be determined in the next senatorial and presidential election will be the ideological makeup of the Supreme Court. Voters should act accordingly.

PFAW

GOP Obstruction Leads to Supreme Court Ruling on Recess Appointments

Share this article:

Ruling in the Noel Canning case this morning, the Supreme Court unanimously struck down President Obama's recess appointments to the National Labor Relations Board as unconstitutional but the justices were sharply divided 5-4 in how they reached that conclusion. While Justice Breyer (joined by Kennedy, Sotomayor, Ginsburg, and Kagan) upheld the conclusion of the right-wing D.C. Circuit judges who had struck down the appointments, they did so on a far different and narrower basis: The Senate's pro-forma sessions meant that it wasn't in recess to begin with, so there couldn't be any recess appointments made.

The Court's majority also wrote that, consistent with practice going back to the 19th century, the Constitution lets the president make recess appointments during any recess (not just ones between two sessions of Congress) and for any vacancy (not just ones that opened up during the recess when the appointment is being made). Justice Scalia (joined by Roberts, Thomas, and Alito) have a much more cramped view: The president can make recess appointments only during the recess that occurs between two different sessions of Congress, and only for a vacancy that was created during that particular recess.


Senate Republicans have used unprecedented obstruction tactics to block nominees.

It's important to remember why this case arose in the first place. President Obama had been driven to make key appointments to the NLRB in January 2012, when the Senate was in recess but having pro forma sessions every three days to make it look like they were still in session. Senate Republicans were preventing the majority from holding a vote on whether to confirm Obama's nominees (at that time, a minority of 41 senators could prevent any confirmation vote), and the unfilled vacancies would have meant that NLRB lacked a quorum and would no longer be able to fully function and protect the rights of millions of working people.

Although Senate Republicans could not pass legislation closing the NLRB's doors, they sought to accomplish essentially the same results through another route, by blocking the Senate from voting to confirm new members of the Board. This was widely recognized as part of a larger pattern using obstruction to nullify laws and agencies that they lacked the electoral mandate to overturn or eliminate through legitimate means.

Justice Scalia accused his colleagues in the majority of being "atextual."

Scalia's concurrence gives examples of political opposition in the Senate leading to vacancies that cannot be filled, including "if [the Senate] should refuse to confirm any nominee for an office, thinking the office better left vacant for the time being." It seems a rather cavalier attitude to take to one chamber of Congress unilaterally deciding that the laws of the nation need not be carried out. And it should be noted that this particular constitutional conflict was not brought about by a Senate that thought the NLRB was better left impotent, but by a Senate minority that refused to let the majority fill the agency's vacancies.

PFAW

Great Progress in Judicial Nominations

During the past several months, Senate Majority Leader Harry Reid and Judiciary Committee Chairman Patrick Leahy have clearly made judicial nominations a priority. Taking advantage of last year's rules change and standing up against GOP filibusters of every judicial nominee without exception, Senate Democrats have made great strides in addressing the vacancy crisis.

So far in 2014, the Senate has confirmed 50 federal circuit and district court judges. That's more than were confirmed during all of last year, or during the year before. With the Senate finally able to do its job, the number of current vacancies has gone down from 92 at the beginning of the year to 60 today. The number of current vacancies is lower than it has been since the earliest weeks of the Obama Administration, when the GOP began its mission of obstructing his judicial nominees.

None of this is because Republicans have suddenly ended their obstruction. Far from it: They have not consented to a single one of this year's confirmation votes. Of course, once their filibusters are beaten back, they usually vote to confirm the nominee overwhelmingly.

Next to be confirmed are a diverse group of 16 pending nominees fully vetted by the Judiciary Committee (11 of them voted out just this morning). Of these 16 nominees, 11 are women or people of color. They would add to the experiential and professional diversity on the bench, as well. For instance, Florida's Beth Bloom and Paul Byron, Georgia's Leigh Martin May, and Louisiana's John deGravelles have private practice experience representing injured plaintiffs; Missouri's Ronnie White and California's André Birotte bring experience as public defenders; Florida's Carlos Mendoza and Paul Byron served in the military as criminal defense lawyers in the U.S. Navy and U.S. Army, respectively.

There is no reason not to have confirmation votes for all 16 of them before the long summer recess. If that happens, then the total number of current vacancies will drop into the 40s for the first time since before George W. Bush left office.

Every American has the right to protect their legal rights in a court of law, but judicial vacancies make that harder. Harry Reid, Patrick Leahy, and the Democrats are to be commended for making judicial confirmations such a high priority.

PFAW

Marco Rubio Fails Florida, Doesn't Help Florida Judicial Nominees

Last week, we asked if Florida Sen. Marco Rubio would step in to prevent his party from needlessly delaying committee approval of four highly qualified district court nominees, all of whom he recommended to the White House. All four vacancies are judicial emergencies, with a caseload so high that even if every vacancy were filled today, the districts would still need several additional judges to ensure timely access to justice for those in Florida to protect their rights.

But the GOP as a matter of course delays committee votes on President Obama’s judicial nominees as part of their overall effort to keep as many seats as possible empty so they can be filled by a Republican president.

At this morning’s Judiciary Committee meeting, all ranking Republican Chuck Grassley had to say about the nominees was to agree with the chairman that all four are supported by their home state senators and completely noncontroversial. Yet he had the vote delayed without explanation, as expected.

If Rubio chose the interests of his constituents and the health of our nation's judicial system over his party and asked Grassley not to do this, there was no indication of it this morning.

PFAW

Obstruction 2.0: How Republican Senators Continue to Block Judicial Nominations Post-“Filibuster Reform”

Tuesday afternoon, PFAW hosted a special member telebriefing on the continued GOP obstruction of judicial nominees. The briefing featured PFAW’s Executive Vice President Marge Baker and Senior Legislative Counsel Paul Gordon. They discussed how Republicans’ obstruction has reached staggering levels, despite changes in Senate filibuster rules.

Marge gave a brief background on the issue of GOP obstruction of judicial nominations, explaining how important federal judgeships are for deciding many issues that affect everyday Americans and defining why Republicans are determined to continue obstruction confirmations of judicial nominees. Their underlying goal is to keep as many seats empty as possible so a President Cruz or Rubio can fill them with right-wing ideologues.

She addressed the current narrative that President Obama has had more confirmations at this time than Bush had, and explained that these numbers need to be put in the context of the fact that Obama has had around 70 more vacancies to fill than his predecessor. That means for Obama’s confirmation results to be seen as equivalent to those of President Bush, he would have had to have many more nominees confirmed at this point in his presidency.

Paul began a discussion of some of the choke methods Republicans are employing to block the confirmation of President Obama's nominees to the bench. Paul delineated how all too often, GOP senators do not cooperate with the White House to suggest candidates for nomination, delaying the process from the very beginning. Once nominees are made and are sent to the Senate Judiciary Committee, we have seen GOP Senators delay the hearing by not submitting their blue slips, an unofficial tradition that gives home state Senators an opportunity to express their support for the nominee.

Marge explained ways in which Republicans are delaying the process once nominees are in committee, where the minority is allowed to request one-week delays. To express the magnitude of the obstruction, Marge explained how of the 270 nominees who have had a vote during President Obama's term, only 11 have had their votes held on time.

Once on the Senate floor, the situation doesn't get better as senators are able to filibuster nominees by refusing to give unanimous consent to the simple act of holding a yes-or-no confirmation vote. To offset these delays, Senate Majority Leader Harry Reid has been forced to file for cloture. Since the rules change in November, there have been cloture votes on all the nominees, adding hours of senate time in post-cloture debates (30 hours per circuit court nominee).

Marge highlighted that if all 30 nominees on the floor were voted on today, which is possible, then the number of current vacancies would drop precipitously, down to the level at this point in George W. Bush’s presidency. It is essential that these be voted on now, and that confirmation votes for nominations coming out of committee be voted on expeditiously.

Fielding questions from PFAW members, Marge and Paul discussed particular cases of obstruction like that of William Thomas's nomination in Florida, where Senator Marco Rubio withheld his blue slip in support of the nominee-–one that he himself had recommended in the first place. Members also made the connection between the effect of big money in politics and the motivations for GOP senators to obstruct confirmations, and attempted to find ways in which everyday Americans can make their voices heard to their senators regarding the issues of obstruction in judicial nominations. Paul used the example of the DC Circuit Court fight, where with the activism from people across the country rallying together helped get all the court's vacancies filled.

Marge and Paul, along with PFAW members, emphasized how as activists, we can intervene in the fight to take back our democracy by letting Senators know that average Americans are paying attention, watching how they respond and vote on judicial nominations, and considering who may be pulling their strings. For instance, a caller in Florida wanting to influence Marco Rubio could call his office and ask him to prevent a delay in a committee vote for nominees to fill four emergency vacancies. And everyone, regardless of whether there are vacancies in their state, can call their senators and call for the quick confirmation of the large number of nominees awaiting a floor vote. She also highlighted what is at stake in this mid-term election since the officials we elect today will help confirm the judges that will decide important cases that affect average Americans. For this reason, it is important to have demographic and experiential diversity in the courts so judges making decisions understand the impact of the law on regular Americans.

Click here more information on our Fair and Just Courts campaign.

PFAW

Will Marco Rubio Let His Colleagues Delay Four Florida Judicial Nominees?

Next week will be an opportunity for Senator Marco Rubio to exercise some influence within his party and prevent a needless delay in considering nominees to fill four judicial vacancies in Florida's Southern and Middle Districts that very much need to be filled as soon as possible.

How extensive is the need? Just ask the nonpartisan Administrative Office of United States Courts, which has formally designated all of the current vacancies in these two districts as judicial emergencies. Both districts saw increased caseloads in 2013 over previous years. They have the highest and second highest caseload within the entire 11th Circuit. Among all 94 districts in the entire U.S., Florida's Middle and Southern Districts rank ninth and twelfth highest, respectively.

The situation in Florida is so dire that even if every vacancy were to be filled tomorrow, it would not be enough to take care of the courts' growing workloads. In fact, the Judicial Conference has requested a number of new judgeships for the state, including:

  • 5 new judgeships for the Middle District, plus a temporary judgeship; and
  • 3 new judgeships for the Southern District, plus the conversion of a temporary judgeship to a permanent position.

So next week's committee vote on Beth Bloom, Darrin P. Gayles, Carlos Eduardo Mendoza, and Paul G. Byron couldn't come soon enough. All four were recommended to the White House by Senators Rubio and Bill Nelson after they were recommended to them by the senators' Florida Federal Judicial Nominating Commission. Yet the vote is likely to be delayed for no reason other than partisan politics. That's because delaying the committee vote is a small but reliably constant way that Senate Republicans delay and obstruct all of President Obama's judicial nominees.

Committee rules let the minority have a vote "held over" until the next meeting without providing a reason. Committee Republicans have routinely held over nominees since President Obama took office, even if they are completely unopposed. The routine use of this hold, without cause and almost without exception, is unprecedented. In fact, only eleven of Obama's judicial nominees have actually been allowed by the GOP to have their committee vote held as scheduled.

Most of these exceptions occurred in just one day just a couple of months ago, when Arizona's Senators John McCain and Jeff Flake successfully persuaded their fellow Republicans to let a vote on six Arizona district court nominees occur on schedule. They recognized just how dire the situation was in their state, and they got their fellow Republicans not to stand in the way of a timely committee vote.

Will Rubio have a similar conversation with committee Republicans? We'll find out on Thursday.

PFAW

Senate Should Quickly Confirm Circuit Nominees, Like in 2006 Midterm Year

Because Republicans are now filibustering every judicial nominee and generally requiring hours of needless "post-cloture debate" before an actual confirmation vote can be held, it has been harder than ever to "clear the calendar" (which is Senate lingo for "hold confirmation votes on all the nominees who have been approved by the Judiciary Committee and are pending on the Senate floor"). Among the 31 nominees left hanging when the Senate took off for its spring recess last week are six circuit court nominees.

Five of the six were nominated last year; the sixth was nominated in February and was fully vetted by the Judiciary Committee earlier this month. Every one of these nominees should have a confirmation vote this spring, and any circuit nominees cleared by the committee in the coming months should have a confirmation vote before the Senate recesses for the midterm elections.

This would hardly be exceptional. In 2006, at this point in George W. Bush's presidency, the Senate confirmed eight circuit court nominees between April and September (plus a ninth during the lame duck session). Most of them had not even been nominated at this point in 2006 yet were confirmed by year's end, all but one before the Senate recessed for the midterms. These circuit court nominees went all the way from nomination to confirmation as little as 3½ months, 2½ months, and (in two cases) just two months.

Exceptional? Hardly. Only by redefining the current era of Republican obstruction as normal can the efficient processing of circuit court nominations be regarded as exceptional.

If the Senate in 2006 could confirm so many of President Bush's circuit court nominees so quickly, then why apply a different set of rules to President Obama's nominees?

Perhaps that is a question to ask Senate Republicans in the coming weeks if they have the audacity to demand an even slower pace on President Obama's nominees as the midterm elections approach.

PFAW

Senators Cornyn and Cruz Don't Help Texas Nominee

Several days ago we asked what Texas Senators John Cornyn and Ted Cruz would do at this week's business meeting of the Senate Judiciary Committee, on which they both serve. Would they stand up for their home-state's Fifth Circuit judicial nominee Gregg Costa? Or would they side with their fellow Judiciary Committee Republicans and let them delay Costa's scheduled vote for at least two weeks for no reason except to obstruct an Obama nominee?

This morning, we got our answer from the Texas senators: The vote was delayed. Cornyn and Cruz didn't even bother to show up for the meeting.

Committee chairman Patrick Leahy noted their absence:

I had hoped that we'd have one of the Texas senators here, so far as we have a Texas judge here, but apparently they're tied up.

It's not Senators Cornyn and Cruz who are tied up, but the Fifth Circuit Court, which has three vacancies, all of which have been designated as judicial emergencies. But they – and the people they serve – will just have to wait for some relief.

PFAW