Obstruction

Yet Another Filibuster: GOP Ignores Goalposts, Moves Entire Football Field

Senate Republicans – already being condemned for their unprecedented obstruction of highly qualified judicial nominees with strong bipartisan support – today responded to that criticism by escalating their partisan obstruction to even more extremes. Today, after finally overcoming the four-month obstruction of an unopposed circuit court nominee, Senate Democrats were forced to file cloture on the nomination of an unopposed district court nominee, one who worked for and has the support of Bush Attorney General Michael Mukasey: Jesse Furman, nominated to the Southern District of New York.

It would be hard to overstate just how absurd this is. When George W. Bush was president, Democrats routinely approved District Court nominees, frequently without even a recorded vote.

Adding to the absurdity of the filibuster, Republicans have given no reason to vote against Furman's confirmation. He is a respected lawyer who has devoted his legal career to public service, serving under both Democratic and Republican administrations. After law school, he clerked for Justice David Souter, Judge Michael Mukasey (a Reagan nominee to the Southern District of New York) and José A. Cabranes (a Clinton nomine to the Second Circuit). He worked as an Assistant U.S. Attorney in the Southern District of New York during the George W. Bush Administration. For two years during that time, he was detailed to work as Counselor to Mukasey, who had by then become Attorney General under President Bush. In 2009, he returned to the Southern District of New York to become Deputy Chief Appellate Attorney in the U.S. Attorney's Office.

One might think Mukasey's strong support for the nomination would give Republicans reason not to filibuster. He wrote this of Furman: "All I can hope to add is my own belief that he is a person to whom one can entrust decisions that are consequential to the lives of people and to the general welfare of the populace, with confidence that they will be made wisely and fairly ... and I urge that he be confirmed."

Mukasey is not alone. The ABA has analyzed his record and found him qualified. A unanimous Judiciary Committee agreed.

There are currently six judicial vacancies in the Southern District of New York. Furman's nomination to fill one of those vacancies has been pending on the Senate floor for five months now.

This latest filibuster is an outrage. Republicans haven't just moved the goal posts. They've moved the entire stadium. The American people deserve so much better than this.

PFAW

Senate Confirms First Cuban American 11th Circuit Judge After Months of GOP Foot-Dragging

The Senate this afternoon finally confirmed Judge Adalberto José Jordán to sit on the 11th Circuit Court of Appeals, which covers Florida, Georgia and Alabama. Jordán becomes the first Cuban American to join the 11th Circuit – an important victory for Florida’s large Cuban American population.

What wasn’t a victory for Cuban Americans, or for any Americans seeking justice in the desperately overworked 11th Circuit, was the long and frustrating process that led to Judge Jordán’s confirmation. Despite being a highly qualified nominee with broad bipartisan support, the GOP filibustered Jordán’s nomination for four months, only to vote overwhelmingly in his favor when the filibuster came to a vote. And once the filibuster was finally broken, one Republican senator, Rand Paul of Kentucky, used a little-used rule to postpone the final vote on Jordán another two days to push a completely unrelated policy priority.

In the Washington Post yesterday, columnist Dana Milbank wrote that the Jordán filibuster reflects the GOP’s puzzling indifference to Latino voters:


Jordan is the very picture of the American dream: Born in Cuba, he fled with his parents to the United States at age six and went on to become a lawyer and clerk for Justice Sandra Day O’Connor. With the support of his home-state senator, Republican Marco Rubio (Fla.), a fellow Cuban American, Jordan was nominated to become the first Cuban-born judge to serve on the 11th Circuit Court of Appeals, which covers Alabama, Georgia and Florida.


There is no serious objection to his confirmation — which makes the hazing he has experienced all the more inexplicable. Republicans slow-walked his nomination (he was approved unanimously by the Judiciary Committee in July), then filibustered his confirmation vote on the Senate floor. Even when the filibuster was broken Monday night (by a lopsided 89-5), a lone Republican, Sen. Rand Paul of Kentucky, used a procedural hurdle to postpone the confirmation vote by two days, to Wednesday.


Congressional staffers I checked with couldn’t recall a similar instance of blocking a confirmation even after a filibuster had failed. This would seem to be a unique humiliation for a man hailed by the Hispanic National Bar Association because of “the positive message this nomination sends to the Latino community.”
 

PFAW

White House Blasts Senate GOP for Filibuster of 11th Circuit Nominee

White House Press Secretary Jay Carney began his press briefing today by pointing out the absurdity of the Senate GOP’s persistent stalling of the president’s judicial nominees, most recently 11th Circuit nominee Adalberto Jordán.

Jordán is a consensus nominee supported by both of his home-state senators – Republican Marco Rubio and Democrat Bill Nelson – and if confirmed will become the first Cuban American to sit on the 11th Circuit Court of Appeals, which has jurisdiction over the largest Cuban American population in the country. What’s more, the seat he has been nominated to fill has been officially designated a judicial emergency.

Despite his qualifications, bipartisan support, and the historic import of the nomination, the GOP filibustered Jordán’s nomination for four months. After the Senate finally voted to end the filibuster last night Jordán’s nomination was held up once more for reasons having nothing to do with him or with the people of Florida, Georgia and Alabama. One senator, Rand Paul of Kentucky, used an obscure rule to take Jordán’s nomination hostage to promote a bill curtailing foreign aid to Egypt.

Carney told the press:

Before I get started, I wanted to make note, if I could, of a development in the Senate. As you may know, but may not, the Senate is soon scheduled to confirm Adalberto Jordán, our nominee for the 11th Circuit. Jordán is a current, well-respected District Court judge, supported by Senators Nelson and Rubio, and he was reported unanimously out by the Judiciary Committee months ago. And he will now be the first Cuban American on the 11th Circuit.

Despite his sterling credentials and the bipartisan support that he enjoys, Republicans filibustered this nomination. To overcome the filibuster, Leader Reid had to file cloture, a procedure that while once extraordinary is now commonplace out of necessity. Cloture was invoked last night, 89 to 5, but Republicans are still forcing the Senate to burn time in a blatant delay tactic. Leader Reid had to go through extraordinary measures to get a judge confirmed with no Republican opposition, and a seat he will fill is a judicial emergency seat.

Now, the reason why I raise this, even though Mr. Jordán will be confirmed, is that it is so indicative of a breakdown in the system when a nominee as highly qualified as he is, with bipartisan support as he has, who's reported out of committee unanimously, still faces filibusters. And you have to ask yourself why that is. It's just simply delay tactics, and they're shameful.

There are 17 other judicial nominations pending on the Senate calendar; 14 were reported out unanimously; seven of those would fill judicial emergencies and seven are represented by at least one Republican senator. And yet the delay tactics continue.

With that, I will take your questions. Hello.
 

PFAW

Florida Nominee to Test How Far GOP Will Take Obstruction

As Paul wrote earlier today, Senate Majority Leader Harry Reid has schedule a vote on Monday to break the GOP filibuster of Adalberto Jordán, a Florida judge nominated to fill a judicial emergency on the 11th Circuit Court of Appeals. If confirmed, Jordan would be the first Cuban American judge on the 11th Circuit, which oversees Florida, the home of the United States’ largest Cuban American population.

What’s most notable about this vote is that it’s happening at all.

Traditionally, nominees like Jordán – who has the support of both his home-state senators, a Republican and a Democrat, and who was approved unanimously by the Judiciary Committee – would be swiftly confirmed, not be filibustered by the minority party.

But the Senate GOP hasn’t been so fond of Senate tradition, or efficient management, when it comes to confirming President Obama’s nominees. Instead, the GOP is filibustering Jordán and sixteen other nominees, the vast majority of whom have broad bipartisan support.

Below is an updated chart comparing how long each nominee on the Senate calendar has been waiting for an up-or-down vote, compared to the average wait time for Bush’s nominees at this point in his presidency.

The difference is striking:

The Senate GOP has been doing everything it can to gum up the works of the Senate – even when it means causing a four month delay for a widely-admired, bipartisan, historic nominee for a seat that has been designated a “judicial emergency.”

The pressure is now on Sen. Marco Rubio, a new favorite in the GOP, to convince his fellow Republican senators to put aside politics and confirm Jordán.
 

PFAW

End the Filibuster of Judge Jordán

With Republican obstruction of qualified consensus judicial nominees showing no sign of abating, Senate Majority Leader Harry Reid has filed cloture on the nomination of Adalberto José Jordán to the Eleventh Circuit Court of Appeals. The vote to break the Republican filibuster is scheduled for Monday at 5:30.

Jordán is one of the 18 nominees stuck pending on the Senate floor because Republicans refuse to allow a yes-or-no vote to be scheduled. He received the highest possible rating from the American Bar Association, with a unanimous panel finding him well qualified. Judiciary Committee members who looked over his record agreed, voting unanimously to advance his nomination.

Senator Marco Rubio – Jordán's home state senator and a fellow Cuban American – strongly supports the nomination. As he told the committee, "I think his experience and his resume will speak for itself. ... As a community, we're very proud of Judge Jordán's nomination and we look forward to his appointment."

Jordán immigrated from Cuba when he was six and is the quintessential American success story. Since 1999, he has served ably as a federal district court judge in Miami, where he has presided over nearly 200 trials on a wide range of civil and criminal matters.

The Circuit that he would join desperately needs this vacancy filled, so much so that the Administrative Office of the United States Court has formally declared it a judicial emergency. In other words, there are so many cases and so few judges that Americans are not able to get their day in court.

This nomination has been languishing on the Senate floor since October 13. That was four months ago. Republicans have absolutely no excuse for this latest obstruction. Hats off to Sen. Reid for "calling the question" on this critical nomination. Next we need to turn our attention to the other 17 nominees on the Senate's calendar and the other nominees who will be reported by the Senate Judiciary Committee despite the Republicans' efforts to slow walk nominations in Committee as well.

PFAW

The Mechanism of Obstruction Continues

Before Senate Republicans graciously allowed a vote this afternoon on one of the 19 long-pending judicial nominations – just one, mind you – they did something this morning, that, unfortunately has become all too routine in their relentless efforts to slow-walk judicial nominations: They needlessly delayed committee votes on four additional highly qualified nominees. Republicans won't even let them advance to the floor to languish there, but are delaying them in committee for no reason.

As they have done for all but five of President Obama's judicial nominees, committee Republicans this morning exercised their option to "hold over" (i.e., delay) votes on judicial nominees. The routine use of this hold, without explanation, without regard to actual questions about the nominee, and almost without exception, is unprecedented. And while the delay, likely to be one week, is not by itself enormous, it has become a predictable component of the overall mechanism of obstruction that Senate Republicans have created to keep our nation's courtrooms from functioning effectively for the American people.

Three of the four vacant seats are judicial emergencies, and the three nominees from states with Republican senators have those senators' strong support.

As PFAW has written before:

No matter who the nominee is, no matter how qualified, no matter if confirmation is needed to address a judicial emergency, all the nominees [who are held over in committee] have something in common: They were nominated by a Democratic president, and that is all the reason Republicans need to obstruct the process and sabotage the judicial branch of the United States government.

So the fact that the bottleneck at the Senate floor didn't get worse today is hardly cause to celebrate.

PFAW

Senators Take to Floor to Protect Americans' Access to Justice

Several senators are taking the floor today to condemn the needless partisan obstruction that is harming America's judicial system and denying Americans their day in court. With more than 10% of every court vacant or soon to become vacant, the crisis is the worst sustained shortage in 35 years. Yet with Republicans refusing to allow the Senate to vote even on nominees who unanimously cleared committee months ago, the crisis is not being resolved.

There are now 19 pending nominees waiting for a floor vote. 17 were approved by the Senate Judiciary Committee with very strong bipartisan support, and 16 were approved without any opposition at all. Thirteen have been pending for three months or more, nine would fill vacancies classified as judicial emergencies.

The obstruction is also preventing us from having a diverse federal bench: 14 of the 19 pending nominees being denied a vote are women or people of color.

Sen. Patrick Leahy, chairman of the Judiciary Committee pointed out a few minutes ago who is being hurt the most by the obstruction:

The costs are borne by the American people. More than half of all Americans – nearly 160 million – live in districts or circuits that have a judicial vacancy. … And they can be filled today – this morning – if Senate Republicans would just agree to vote on the nominations that have been reported favorably by the Judiciary Committee. The irony, Mr. President, is that if those nominees could be brought up for a vote, it would probably be a 100 to nothing vote on all or most of them.

Sen. Richard Blumenthal, speaking after Sen. Leahy, rightly called the American judicial system one of the great marvels of the world. The Senate needs to be allowed to fulfill its role in keeping that marvel vibrant and functional.

We should never minimize the importance of careful vetting and scrutiny when it comes to these nominees. But once that process is complete in the Judiciary Committee, blocking these nominees can only be bad for the American people as well as for the 160 million Americans who live in districts and circuits with vacancies whose nominees are sitting on the Senate calendar. They should not have their ability to access justice denied or delayed.

 

PFAW

The Judicial Confirmation Crisis in One Easy Chart

We write a lot about the Senate GOP’s unprecedented obstruction of President Obama’s judicial nominees, but it can be hard to effectively convey the extent of the needless gridlock. We hope this chart helps:

The dotted line marks 24 days, the average time George W. Bush’s nominees – by this point in his presidency --had to wait between being approved by the Judiciary Committee and getting an up-or-down vote from the full Senate. The blue lines represent the number of days each of the nineteen nominees currently waiting for a Senate vote has been stalled. The dark blue lines – seventeen out of the nineteen – represent nominees who were approved with overwhelming bipartisan support  by the Judiciary Committee. These nominees have no recorded Republican opposition – instead, the GOP is stalling them just for the sake of stalling.

Fourteen of the nineteen nominees are women or people of color. Nine have been nominated to fill seats officially designated as judicial emergencies. All of them deserve prompt up-or-down votes from the Senate.
 

PFAW

Reid Challenges Republicans on their Continued Obstruction of Nominees

In a speech on the Senate floor today, Majority Leader Harry Reid criticized Senate Republicans for neglecting their “constitutional obligation” to confirm presidential nominees. As People For’s Marge Baker wrote last week inUS News & World Report, unprecedented obstruction from Senate Republicans has led to a vacancy crisis in the federal courts and contributed to Americans’ loss of confidence in Congress.


In his weekly radio address on Saturday, President Obama specifically called out Utah Sen. Mike Lee, who after complaining about the slow speed of Senate confirmations is now threatening to block every one of the president’s nominees.


Here are Sen. Reid’s remarks:


Americans believe Congress is broken. And it’s no mystery why.
Political divisions in this chamber are so great they often prevent the Senate from performing even its most fundamental duties.


The divisions are so great they have prevented this body from confirming presidential nominees – our constitutional obligation.
These days, it’s no longer enough to be a qualified nominee.
It’s no longer enough to have bipartisan support.


And in the case of judicial nominees, it’s no longer enough to be reported unanimously out of committee.


Last year, my Republican colleagues blocked or delayed scores of outstanding nominees. Why? Because they want to defeat President Obama, who made those nominations. That’s their number one goal.


And at the end of last year, Republicans refused to allow votes on 16 judicial nominees who were reported out of committee unanimously.


Unfortunately, this year may bring more of the same. Already this year, some Republicans have gone to the floor and threatened to drag out the confirmation process for every nominee for the rest of the year.


This Republican obstructionism is supposedly retribution for President Obama’s recess appointment of Richard Cordray – an eminently qualified nominee – to head the Consumer Financial Protection Bureau.


With a qualified leader at the helm, the Bureau will be able to effectively protect middle class families from the greed and excess of big Wall Street banks.


It will not impact smaller financial services firms that help Americans who don’t use banks. And it will not impact banks that deal fairly with consumers.


But it will serve as a watchdog against the kinds of abuses that nearly collapsed our financial system in 2008.
President Obama’s right to recess appoint Mr. Cordray is protected in the Constitution.


President Bush had the same right to make recess appointments – even though Democrats kept the Senate in pro forma session.


Bush didn’t exercise that right – or challenge the pro forma sessions in court – because Democrats worked with him to confirm hundreds of his nominees.


Unfortunately, Republicans have refused to work with President Obama as Democrats worked with President Bush.


Instead they are threatening political payback and more delays.
This brand of obstructionism is the reason Americans are disillusioned with Congress. They believe Congress can’t get anything done.


It will take collaboration between Democrats and Republicans to turn that perception around.


We should show the American people that with cooperation between our two parties, this body can accomplish great things.

 

PFAW

President Condemns Obstruction of Judicial Nominations in His Weekly Address

In his weekly address this morning, President Obama followed up on his State of the Union theme of restoring the middle class in a time of unprecedented income inequality. A fair judicial system is a vital component of that effort, and the president condemned Senate Republicans who would sabotage our nation's courts. He specifically criticized Sen. Mike Lee of Utah:

Just two days ago, a senator from Utah promised to obstruct every single American I appoint to a judgeship or public service position – unless I fire the consumer watchdog I put in place to protect the American people from financial schemes or malpractice.

For the most part, it's not that this senator thinks these nominees are unqualified. In fact, all of the judicial nominees being blocked have bipartisan support. And almost 90 percent have unanimous support from the Judiciary Committee.

Sen. Lee's anger at President Obama for protecting the 99% from the untrammeled power of the 1% is no surprise. But it's also nothing new for Senate Republicans, as noted in this U.S. News and World Report article by People For's Marge Baker. Sen. Lee is only coming up with a new excuse to continue doing what Senate Republicans have been doing since Obama became president: obstruct the confirmation of judges who will run courtrooms where the 99% and the 1% stand equal before the law.

PFAW

There Is a Judicial Confirmation Crisis, and the GOP Is Causing It

In an op-ed in U.S. News & World Report today, People For's Marge Baker commends the president for mentioning the judicial nominations crisis in his State of the Union address, but says he wasn't telling the whole story:

In Tuesday night's State of the Union Address, President Obama called on the Senate to "put an end" to the unprecedented obstruction of his judicial and executive branch nominees, insisting that "neither party has been blameless in these tactics." He was right to call out the problem, but he was wrong that it's a bipartisan issue. It's fine for the president to be magnanimous, but the fact is only one party has systematically held hostage even the most basic tasks of governing in the hopes of making minor political gains. And that party is not the president's.


The nominations crisis that we face today exists largely because it can easily fly under the radar—and the GOP politicians behind it know that. This Republican Congress's intransigence has caused harm beyond the very public battles over the debt ceiling and tax cuts for millionaires. Under the unglamorous cover of judicial and executive branch confirmations, the Senate GOP has launched a campaign of strategic obstruction to prevent parts of the federal government from functioning at all.


This became clear in the relatively public battle to confirm Richard Cordray to head the Consumer Financial Protection Bureau. Senate Republicans admitted they had no problem with Cordray himself. Instead, all but two stated in a letter to the president that they would refuse to confirm him unless the new, congressionally created agency he was nominated to head was first substantially weakened. It was an unprincipled attempt to legislate via the Senate's power of advice and consent, which the president rightly sidestepped by installing Cordray with a recess appointment.


But the Cordray nomination was just the tip of the iceberg. With far less public attention, the GOP has been decimating the nation's courts, causing the judicial branch to face a historic vacancy crisis and Americans seeking their day in court to face unconscionable delays. This crisis is largely due to the chronic inaction of the Senate, which has been crippled by the Republican minority's abuse of the chamber's rules to block even consensus nominees from getting a yes-or-no vote.
 

Read the whole op-ed here.

 

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.
 

PFAW

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.
 

PFAW

On Judges, Murkowski Stands Alone Within Her Party

Since President Obama took office, Senate Republicans have used every weapon in their arsenal to slow down or prevent altogether confirmation of his judicial nominees. With partisan obstruction as their lodestar, they have abandoned the principles they professed to have when they were pushing for rapid confirmation of President Bush’s nominees.

But one Republican stands out as an exception: Senator Lisa Murkowski.

When it came time to break the outrageous filibuster of Goodwin Liu, Senator Murkowski was the lone Republican not to salute and obey when her party leadership pushed her to vote against cloture. Last week, she again stood alone among her party and voted to end the partisan filibuster of Caitlin Halligan.

We thank Senator Murkowski for standing on principle.

Today, Sen. Murkowski’s efforts to end the obstruction of a highly qualified Alaskan nominee to the Ninth Circuit are bearing fruit. Morgan Christen’s nomination has had the strong, bipartisan backing of both Sen. Murkowski and Democratic Sen. Mark Begich. The workload in that part of the Ninth Circuit has become so bad as to be officially declared a judicial emergency. Late summer, Christen’s nomination was approved unanimously by the Senate Judiciary Committee.

Christen should have received a floor vote expeditiously, and that is what Sen. Murkowski requested. Unfortunately, Republican leadership put partisanship against President Obama over all other factors and prevented a floor vote for over three months, until today. This afternoon, to no one’s surprise, she was confirmed with overwhelming bipartisan support (the vote was 95-3).

We often disagree with Sen. Murkowski on issues and expect to do so in the future. But when it comes to President Obama’s judicial nominees, we agree. Sen. Murkowski’s lonely stands for principle over party deserve praise.

PFAW

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

With Nominations, the Senate GOP Legislates by Gridlock

This piece originally appeared in the Huffington Post.

The Senate GOP under President Obama has mastered the art of proactive apathy. Not content with neglecting their own jobs, Senate Republicans have expertly used their own dysfunction to prevent other parts of government from doing theirs. These efforts have consequences far beyond bureaucratic procedure: whether it's by crippling the courts or attacking agencies that hold corporations accountable, Republicans are making it harder for individual Americans to access the rights that a functioning government protects.

This week, Senate Republicans added two new public disservices to their resume. On Tuesday, they shattered the 2005 "Gang of 14" deal that prevented filibusters of judicial nominees in all but extraordinary circumstances, setting a standard that no nominee for the D.C. Circuit will be able to meet. As President Obama said about the filibuster of Halligan's nomination, "The only extraordinary things about Ms. Halligan are her qualifications and her intellect." And then on Thursday, they blocked President Obama's nominee to head a new federal agency simply because they do not want that agency to exist -- a move that will have untold consequences on future attempts to staff the executive branch.

These political power plays by a minority of senators are far more than "inside the Beltway" procedural dust ups. They signal the emergence of a party that is so intent on tilting the playing field in favor of the powerful that they will sacrifice basic public service in order to serve the interests of a powerful few.

On Tuesday, all but one Senate Republican refused to allow an up-or-down confirmation vote on Caitlin Halligan, a D.C. Circuit Court nominee who in any other year would have been easily approved by the Senate. The GOP struggled to find a reason to oppose Halligan on her merits, ultimately settling on a handful of trumped-up charges and the ridiculous argument that the D.C. Circuit, with one third of its seats vacant, didn't need another judge. When George W. Bush was president, many of these same Republicans loudly proclaimed that filibustering judicial nominees violates the United States Constitution, ultimately agreeing to the "Gang of 14" deal that judicial nominees would only be filibustered under "extraordinary circumstances." The vote on Halligan shattered that deal, opening the door for further political abuse of the judicial confirmation process.

On Thursday, the story repeated itself when the GOP succeeded in blocking a vote to confirm Richard Cordray to lead the newly created Consumer Financial Protection Bureau. Cordray, the former attorney general of Ohio, is as non-controversial as they come. He has a history of working with banks and with consumer advocates. He's backed by a bipartisan coalition of attorneys general, including the Republican who beat him in last year's election. Republicans in the Senate don't have any problems with Cordray. But they've made it very clear that they'll do everything in their power to keep the Consumer Financial Protection Bureau from performing the functions that it is required by law to carry out. They don't want anyone to lead the agency, because without a Senate-confirmed head, it cannot perform all of its legally assigned duties. This is not conjecture on the part of progressives; Republicans have brazenly admitted it.

Unfortunately, these votes are not aberrations. They are part of a clear pattern of the Senate GOP since President Obama's election. Unable to accept the results of an election they lost, and unable to get their own way on everything, they have resorted to obstruction and dysfunction. They have abused the extraordinary power the Senate minority is granted , blocking everything they get their hands on, sometimes, it seem, simply because they can. In the process, they are damaging America's system of justice and accountability and betraying the voters they were elected to serve.

Perhaps they are doing this to serve the powerful corporate special interests that do not want courts and agencies to hold them accountable, or perhaps they are doing it to score political points against a Democratic president, or some combination of those reasons. Ultimately, it doesn't matter. Either way, they are abusing their positions and throwing sand in the gears of the Senate to make it harder for ordinary Americans to get our day in court and to defend ourselves against the powerful. It's a deeply cynical strategy, and ultimately a deeply harmful one.

PFAW

GOP Disinformation Campaign on Filibustering Judges

Apparently recognizing the severe and possibly permanent damage they did to the judicial nominations process – and the entire U.S. court system – by filibustering Caitlin Halligan, Senate Republicans are running to the press to do damage control. Two days after they blocked consideration of a highly qualified, mainstream appeals court nominee for purely political reasons, they are claiming that they did nothing of the sort. Still covered in soot from the bomb they set off, they are painting themselves as peace-loving senators treating their Democratic colleagues respectfully.

In what might be mistaken for an April Fool's Day article, Roll Call has a piece trumpeting the GOP's claim that they are following the "golden rule" on judicial nominations, treating nominees supported by Democrats with as much respect as they would want theirs to be treated.

Graham and other Senate Republicans said they expect more of Obama's judicial nominees to be approved by the Senate next year, as long as the nominees' views are within the mainstream and they are properly vetted.

Then why have the Senate Republicans continued to slow-walk every nomination that comes before them? Even those with no opposition at all are forced to wait for months before the GOP allows them a floor vote. The contrast with how quickly President Bush's committee-approved nominees were given a floor vote is shocking. An average 22-day wait for President Bush's district court nominees has ballooned to 90 for President Obama. For circuit courts, Senate Republicans have forced the average wait from 30 days (for Bush) to 137 (for Obama).

The Senate has, for the most part, continued to adhere to the [2005 Gang of 14] agreement. Only two judges have been filibustered since 2005: Goodwin Liu and Halligan ...

Adhering "for the most part" is a cynical attempt to put a positive spin on "not adhering." The filibusters of Liu and Halligan were in clear violation of the agreement. And it's not "the Senate" that has violated the agreement, it's Senate Republicans.

The article conveniently overlooks the aggressive Republican effort to filibuster district court nominee Jack McConnell earlier this year, an effort that garnered the support of the majority of the Republican caucus. It also overlooks the fact that Democrats have had to file cloture on seven of Obama's judicial nominees in order to break through GOP obstruction. That some of those were ultimately confirmed overwhelmingly, sometimes even without any opposition, shows the cynical nature of the Republicans' misconduct.

But there are even more Republican filibusters than that. As a 2011 Congressional Research Service report states, "Cloture may be sought when no filibuster is taking place, and filibusters may occur without cloture being sought." Democratic leadership has sought to bring dozens of qualified, unopposed nominees to the floor in a timely manner, only to have them blocked for months by Republican leadership's refusal to agree. Just because Majority Leader Reid has not filed a cloture petition on them does not mean that they are not being filibustered.

Currently, there are 21 judicial nominations pending on the floor, 19 of them with overwhelming bipartisan support. There is no reason not to vote on them. If Republicans want people to do anything other than laugh at articles like this, they should end their filibusters and allow votes on them all.

Sen. Mike Lee (R-Utah) also said the Halligan vote was no watershed. Lee said the GOP treads lightly when it comes to filibustering judicial nominations, in part, for fear of antagonizing Democrats in the event that Republicans win the majority.

"We don't want to abuse [the filibuster of judicial nominees] because abusing it is wrong," Lee said. "But also there are consequences attached to abusing it and that is [another reason] why we are not abusing it."

"Abuse" is exactly the right word to describe the ongoing Republican obstruction of judicial nominees. Saying that black is white does not make it so.

PFAW

An Extraordinary Vote Shatters Senate Deal on ‘Extraordinary Circumstances’

The Senate GOP has already made it more difficult than ever for qualified judicial nominees to make it through the confirmation process. Yesterday, they made it even harder.

Caitlin Halligan, President Obama’s nominee to fill the seat on the D.C. Circuit Court of Appeals that Chief Justice John Roberts vacated when he was appointed to the Supreme Court six years ago, is widely regarded as well-qualified and moderate. She has the support of a large and bipartisan group of prominent attorneys and law enforcement officials. Her legal views are decidedly non-controversial and middle of the road.

Yet Halligan yesterday became another victim of the Senate GOP’s strategy to defeat the Obama administration by preventing anything at all from getting done. When Democrats tried to get her a simple up-or-down confirmation vote, all but one Republican voted to keep up the filibuster against her. Why? Because, they said, the D.C. Circuit could keep on functioning with one third of its seats empty.

Andrew Cohen at The Atlantic summed up the implications:

If it were possible to strip the political varnish from the judicial nomination process, if we reduced the dark art down to its elemental tones, what we would see is both simple and maddening. 1) Our nation doesn't have enough federal judges working on cases. 2) The result is a growing backlog in the administration of justice that impacts the lives of millions of Americans. 3) There is a limited supply of capable, honest lawyers who are willing to take a pay cut, not to mention endure the background checks, to work as life-tenured jurists. 4) The Senate is unwilling to confirm dozens of these dedicated people out of partisan spite.

The Senate GOP’s ongoing efforts to keep the judiciary from functioning properly are both a powerful deterrent to talented lawyers who are recruited for the bench, and set a dangerous precedent for future Senate confirmation battles.

In 2005, the Senate’s “Gang of 14” cut a deal agreeing to only filibuster judicial nominees under “extraordinary circumstances,” which Sen. Lindsey Graham defined as “a character problem, an ethics problem, some allegation about the qualifications of the person, not an ideological bent.” Republican senators lined up to bash judicial filibusters, some even calling them unconstitutional,  and expound on the importance of a functioning judiciary. Many of these, including Graham, have apparently changed their minds.

The filibuster of Halligan clearly shatters this deal. The desire to keep President Obama’s nominees off the bench is in itself not an “extraordinary circumstance.” The new standard for judicial filibusters the Senate GOP set yesterday is one that will hurt qualified nominees of this president and of the next president, whatever his or her party.
 

PFAW

Senate Schedules Cloture Vote for Caitlin Halligan

Senate Majority Leader Harry Reid has scheduled a cloture vote for Tuesday at noon on Caitlin Halligan's nomination to the DC Circuit Court of Appeals. Hopefully, that means the Senate will be able to finally cast an up-or-down vote on an exceptional nominee who was approved by the Judiciary Committee almost nine months ago.

Judiciary Committee Chairman Patrick Leahy released a statement this morning on what it means that Senate Republicans would even consider filibustering someone like Caitlin Halligan:

Republicans' shifting standards with respect to judicial nominations have required cloture motions to be filed on some nominations that ultimately won unanimous support from the Senate. Those shifting standards even required cloture to be filed on a district court nomination earlier this year. It would set yet another new standard if a nominee this well-qualified is prevented from even having an up-or-down vote, and one that could not be met by judicial nominees of Presidents of either party.

Indeed, Halligan's exceptional qualifications and broad-based, bipartisan support cannot be denied:

  • She has received the highest possible rating of her qualifications from a unanimous panel of the ABA's nonpartisan Standing Committee on the Federal Judiciary.
  • She served as New York's State's solicitor general for nearly six years.
  • She has a broad range of professional experience in government service, private practice, and academia.
  • She has received the strong support of a bipartisan group of America's most renowned appellate advocates, including Miguel Estrada (Assistant to the Solicitor General under President George W. Bush and former nominee to this same court), Seth Waxman (Solicitor General under President Clinton), Carter Phillips (Assistant to the Solicitor General under President Reagan), and Walter Dellinger (Solicitor General under President Clinton).
  • She has been endorsed by women's professional organizations like the National Center for Women and Policing, the National Conference of Women's Bar Associations, the Women's Bar Association of the District of Columbia, and the U.S. Women's Chamber of Commerce.
  • She has the support of law enforcement organizations like the National District Attorneys Association, the New York Association of Chiefs of Police, the New York State Sheriff's Association, and New York Women in Law Enforcement.
  • She has been endorsed by top law enforcement officials in her home state like Raymond Kelly (New York City Police Commissioner) and Robert Morgenthau (former New York County District Attorney).
  • She was awarded the National Association of Attorneys General “Best Brief” award five consecutive years.

Clearly, Caitlin Halligan is supremely qualified, mainstream, and uncontroversial. The need for a cloture vote shows how far Senate Republicans have moved the goalposts since claiming during the Bush Administration that the Constitution actually prohibits the filibustering of judicial nominees. It is hard to imagine what "extraordinary circumstances" – the standard set by the "Gang of Fourteen" in 2005 – would possibly warrant a filibuster in this case.

Chairman Leahy is right to mention that a new standard would be created if a DC Circuit Court nominee with such sterling qualifications and bipartisan support cannot even get an up-or-down vote on the Senate floor. What nominee could possibly meet this new standard? Should Halligan be filibustered, then it seems unlikely that any vacancy on that court could ever get filled. Considering that three of the eleven seats on the DC Circuit are vacant (this one for more than six years), that would deal a crippling blow to what many consider to be the nation's second most important court.

When the cloture vote on Halligan is held this Tuesday, let's hope cooler heads prevail. And let's hope that by Wednesday, we'll be calling her Judge Caitlin Halligan.

PFAW

In Tight Race with Elizabeth Warren, Scott Brown Bucks Party to Endorse Cordray for Consumer Financial Protection Bureau

Last month, PFAW’s Marge Baker wrote an op-ed for The Hill suggesting a simple way that Congress can respond to the energy behind Occupy Wall Street: by finally confirming Richard Cordray to head the long-languishing Consumer Financial Protection Bureau. Marge wrote:

Thanks to Republican obstructionism, the CFPB, tasked with holding big banks accountable to American consumers, has been without a leader since it was created by the Dodd-Frank Act last year. Elizabeth Warren, who conceived of the agency and oversaw its creation, would have been the natural fit to lead it, but her unapologetic work holding financial institutions accountable put her on the bad side of Congress’s GOP leadership.


In July, President Obama nominated former Ohio attorney general Richard Cordray to head the agency. Cordray is a strong defender of consumers who has also earned respect from the banks he worked with in Ohio. Last week, a bipartisan group of 37 state attorney generals wrote to Congress urging his confirmation. Even Ohio’s Republican attorney general Mike DeWine, a former U.S. senator who defeated Cordray in last year’s election, has endorsed him for the job. He is a well-respected, reasonable and eminently qualified choice to lead the agency.

Cordray’s nomination would be a shoe-in if it weren’t for one thing: Republicans in Congress don’t want the Consumer Financial Protection Bureau to exist at all. Unable to stop its creation, they have turned their energies to starving it. In May, 44 Republican senators sent a letter to the president saying that they would not confirm any nominee to head the CFPB unless the agency was first substantially weakened. Without a confirmed leader, the agency can’t fully start the work that it was designed to do.


While the agency is already overseeing credit companies and big banks, it can’t have its full oversight over mortgage companies and payday lenders until a head is confirmed. This situation is perfectly satisfactory to big lenders and the GOP leadership – but it’s bad for American consumers.


There is now one notable exception to the Republican blockade of Cordray’s nomination. Massachusetts Sen. Scott Brown, who is running against CFPB architect Elizabeth Warren in what will likely be a tough reelection race, has urged his fellow GOP senators to break their filibuster of Cordray’s nomination.

Brown’s in a more precarious political position than many of his Republican colleagues, but his endorsement of Cordray is telling. Recent polls have shown that Americans are concerned about the nation’s increasing income inequality and want tougher government regulation of Wall Street. The big banks may not want the Consumer Financial Protection Bureau to get up and running, but American consumers are eager for the protections that the bureau would provide. Sen. Brown has done the right thing by bucking his party to support Cordray – but by doing so he’s also acknowledging the tough spot that opponents of financial sector accountability may find themselves in in 2012.
 

PFAW