The fight to keep the Senate blue this November is critical to a slew of progressive issues – from immigration reform to voting rights, women’s health to LGBT equality. But the greatest risk of a Republican Senate could be an issue that gets far less mainstream attention: judicial and executive nominations.
Senate Republicans have a well-established track record of obstructing President Obama’s nominees for judicial and executive branch appointments. This past April, PFAW held a member telebriefing to discuss GOP obstruction tactics, such as delaying confirmation hearings and forcing time-consuming cloture votes. While the Senate made significant progress in recent months in filling critical vacancies, a staggering 153 judicial and executive nominees currently await confirmation votes in the Senate, and judicial vacancies continue to have real consequences for Americans nationwide. Republicans want a federal court system dominated by right-wing ideologues who issue poorly reasoned decisions that cause devastating harm to real people, rather than ones who adhere to the law and our constitutional principles. They have used their power as the minority to engage in unprecedented obstruction. But their ability to keep the executive and judicial branches of the United States government from functioning effectively would be amplified immensely should they control the Senate.
In an article this week addressing this potential threat to the nominations process, Talking Points Memo quoted congressional scholar Norm Ornstein as saying that a GOP-controlled Senate “means the ability of Obama to get any judicial nominations through becomes about zero.” And the people at Talking Points Memo aren’t the only ones to take note. Right-wing talk radio personality and American Family Association spokesperson Bryan Fischer told listeners today that the 2014 election is critical for conservatives because President Obama “is going to try to stack and pack every circuit court in the country.”
“This election in November is huge, because whoever controls the Senate now is going to be in control of every single nomination to the federal bench for the next few years,” said Fischer, who alleged that there is an “overwhelming preponderance of Obama acolytes” on federal courts.
There are countless reasons for progressives to turn out to the polls this November 4, and little doubt in our minds that the fight to keep the Senate blue will be a tough one. But the potential for continued judicial and executive vacancies that could result from a Republican-controlled Senate – and could have serious, negative consequences on the capacity of our judicial and executive branches of government -- is especially onerous.
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).
…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.
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.
On Tuesday, Senate Majority Leader Harry Reid (D-Nev.) responded to Sen. Chuck Grassley’s (R-Iowa) absurd claim that this Congress has done well in confirming judicial nominees. In fact, Republicans have not consented to even one judicial confirmation vote since November. The few votes that have been held since then have been over GOP filibusters. Unfortunately, Senate rules allow them to demand hours of needless “post cloture debate” after every cloture vote, so it could take weeks and weeks of Senate floor time to get through all the nominees waiting for a simple yes-or-no vote.
Reid was quick to voice that the confirmation process has been unnecessarily delayed by GOP obstruction:
Everyone knows that we are in this situation because of Republicans slow-walking every nomination—every nomination. There is no reason, no reason whatsoever that we are having votes on cloture on these judges.
“It is a waste of the taxpayers’ time to go through the process we’ve been going through.
Reid, aware of the prolonged time they will spend clearing the backlog due to these procedural delays, promised that they will get through filing cloture on all of the nominees.
If that’s what the Republicans want us to do, then that’s what we’ll do. The American people will see this colossal waste of time that we’ve been going through.