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:
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.
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.
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.
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