Obstruction

Last night, in the latest episode of their passive-aggressive crusade to keep President Obama’s judicial nominees off the bench, the Senate GOP put on a mind-boggling display of obstruction.

As the Senate confirmed Elena Kagan’s Supreme Court nomination, 21 other judicial nominees were waiting for Senate votes. More than half of these nominees had been approved unanimously by the Judiciary Committee, and all had been waiting more than 100 days for confirmation.

After the Kagan vote, Senate GOP leader Mitch McConnell agreed to hold voice votes on four of the stalled nominees, and promised to agree to a vote on another—Jane Stranch, a Tennessee attorney who has been waiting more than a year for confirmation, despite having the support of both of her home state’s Republican senators-- in September.

The GOP sent five nominees back to the White House—meaning that the President will have to renominate them and start the process again.

That left eleven nominees in Senate limbo. Nine of them had received absolutely no opposition from either party in their Judiciary Committee hearings.

In an interview Monday, the National Journal asked McConnell about his party’s obstructionism. “Is the Senate broken?” the interviewer asked. McConnell answered:

No. Members frequently on both sides hold up a nominee because of some concern they have. It is more likely to be done if you are in the minority because the administration is not of your party and less likely to address your concern. This kind of give-and-take I have seen go on before. It is not any more dramatic now than it has been in the past, and this president has not been treated worse than the last one was. But it is always maddening to the majority and maddening to every president.

I must say the president even made it worse by recessing a guy like [Craig] Becker [to the National Labor Relations Board], who was defeated in the Senate. We had a vote. He was defeated on a bipartisan basis. And recessing a guy like [Donald] Berwick [to oversee Medicare and Medicaid] without any hearings at all and with the chairman of the Finance Committee [Max Baucus, D-Mont.] saying he didn't think he should have been recessed. That is not the kind of action that is designed to, shall I say, engender a cooperative reaction on the part of the minority. I think we can statistically show you that it is not worse for President Obama. He hasn't been singled out more for shoddy treatment than it has been in the past.

It’s unclear what “concern” McConnell is referring to in the case of the nine blocked nominees who have received absolutely no Republican opposition. The concern seems to have nothing to do with the nominees at all—but rather with unrelated executive branch nominations that the GOP is seeking revenge for.

And as for McConnell’s claim that “we can statistically show you that it is not worse for President Obama,” the Center for American Progress has a chart for that:

In the wake of Citizens United and other rulings that put corporate bank accounts ahead of individual rights, it has become increasingly clear where the priorities of the Supreme Court’s conservative majority lie. Republicans in Congress, unlike most Americans, like what they’re seeing—and are doing everything in their power to make sure the Roberts Court’s philosophy is reflected in lower courts throughout the country.

Apparently not satisfied with the current conservative bent of the nation’s entire judicial system (nearly 40% of federal judges nationwide were appointed by George W. Bush), Republican Senators are trying to stall district and circuit court judicial nominations until they are in a position to appoint federal judges once again, packing the court even more firmly for corporate interests.

A recent study by the Center for American Progress found that the current Republican obstruction of judicial nominations is truly unprecedented. The graph below pretty much says it all:

The current Republican obstructionism is unprecedented. Even George H.W. Bush, whose party never controlled the Senate during his term, enjoyed a confirmation rate nearly double that of President Obama and the current solidly Democratic Senate.

Yesterday, several senators put a much-needed spotlight on the GOP’s obstruction of judicial nominations. Senator Sheldon Whitehouse of Rhode Island spoke about the special interests that are preventing public interest lawyer John McConnell, an extremely qualified nominee who enjoys bipartisan support, from serving his home state:

Why is it that nominees of President Obama are being held to a different, new standard than applied to the nominees of President Bush? Why have we departed from the longstanding tradition of respect to the views of home State Senators who know the nominees best and who best understand their home districts? … I ask this because we have a highly qualified nominee in Rhode Island, Jack McConnell, who was reported by the Judiciary Committee on June 17. It was a bipartisan vote, 13 to 6, with the support of Senator Lindsey Graham. Jack McConnell is a pillar of the legal community in Rhode Island…The Providence Chamber of Commerce has praised Jack McConnell as a well-respected member of the local community. Political figures from across our political spectrum have called for his confirmation, one of them being my predecessor as Rhode Island attorney general, Republican Jeffrey Pine.

…Notwithstanding the support of Senator Reed and myself, the two Senators from Rhode Island, notwithstanding that this is a district court nomination, notwithstanding the powerful support across Rhode Island from those who know Jack McConnell best, special interests from outside the State have interfered in his nomination. The U.S. Chamber of Commerce, not the Rhode Island chapter, the U.S. Chamber of Commerce has attacked Jack for having the temerity to stand up to big business, to the asbestos to representing the rights of the powerless. In doing so, the U.S. Chamber has created a cartoon image of Jack McConnell that bears no relation to the man Senator Reed and I know as a great lawyer, as a great Rhode Islander, and somebody who will be a great judge.

I ask my colleagues…do we want to let powerful out-of-State interests trump the better informed views of home State Senators about district court nominees?

This is not just a political question-- the GOP is so concerned about keeping the courts corporate-friendly in the long-term that they’re ignoring the very urgent short-term needs of the federal court system. While judicial positions around the country remain vacant, many Americans are forced to wait for inexcusably long periods to have their day in court as current judges struggle with an impossible workload. The Judicial Conference has declared 42 of the 99 current judicial vacancies “judicial emergencies.” Carolyn Lamm, President of the non-partisan American Bar Association, calls the current dearth of federal judges “urgent.” But the GOP clearly cares more about protecting their allies in the corporate world than allowing the lower court system to function.

President Obama says he’s increasing the pressure on Republican Senators to stop stalling judicial nominees. After meeting with congressional leaders today, he told reporters:

Finally, during our meeting today, I urged Senator McConnell and others in the Senate to work with us to fill the vacancies that continue to plague our judiciary. Right now, we’ve got nominees who’ve been waiting up to eight months to be confirmed as judges. Most of these folks were voted out of committee unanimously, or nearly unanimously, by both Democrats and Republicans. Both Democrats and Republicans agreed that they were qualified to serve. Nevertheless, some in the minority have used parliamentary procedures time and again to deny them a vote in the full Senate.

If we want our judicial system to work -- if we want to deliver justice in our courts -- then we need judges on our benches. And I hope that in the coming months, we’ll be able to work together to ensure a timelier process in the Senate.

Since Obama took office, he has met with astounding Republican obstruction of his judicial nominees…which, if it continues, could have serious consequences on justice throughout the country.
 

If there’s one theme that’s prevalent here at Netroots Nation, it’s that elections matter—but what you do after elections matters more.

In a great panel discussion this morning, six judiciary-watchers discussed why the courts should matter to progressives, and why it’s dangerous when they don’t.

Pam Karlan, a professor at Stanford Law school who is frequently mentioned as a potential Supreme Court nominee herself, put it this way: “However much progressive legislation we get from Congress, unless it gets enforced every day by district courts, it’s just words on paper.”

Republicans have successfully made the courts an issue for their base, and are trying to work it to their advantage now that they’ve lost power in Congress and the White House. The Philadelphia Inquirer reported earlier this month that nearly 40% of federal judges currently serving were appointed by George W. Bush, whose habit of recruiting from the conservative Federalist Society led to an intentional right-ward drift on courts across the country.

In their effort to keep the courts on the Right, Republicans are taking full advantage of their well-practiced obstruction skills.

Nan Aron, president of Alliance For Justice described the Republican game plan to keep the courts: “Hold seats open until a Republican president comes in and he’ll fill them in a New York minute.”

Which is exactly what Senate Minority Leader Mitch McConnell is trying to do as he repeatedly refuses to hold votes on confirming President Obama’s judicial nominees. He’s making a deliberate effort to stall all Senate business, but also a calculated plan to keep seats on the federal bench empty for as long as possible with the hope that they won’t be filled by progressives.

What courts do every day—from the Supreme Court down—matters to ordinary people. Indeed, courts are central to our ability to hold corporations and other special interests accountable for harmful behavior. Judicial appointments are essential to securing corporate accountability for environmental safety (just look at the Fifth Circuit, where the judges making important decisions about oil drilling regulation are closely connected to the oil industry); they’re essential to holding businesses accountable for how they treat workers (see Rent-a-Center v. Jackson); and, of course, they’re a critical part of ensuring our civil rights.

Dahlia Lithwick, who covers the Supreme Court for Slate, pointed out that “conservatives have been laser-focused on the court,” while progressives don’t always connect the issues we care about with the courts that ultimately decide their fate.

It's time to change that.

UPDATE: You can watch the full discussion in the video above.

Yesterday the Judiciary Committee voted to forward Elena Kagan’s Supreme Court nomination to the full Senate. Here’s PFAW President Michael B. Keegan’s statement:

Today’s vote is a step towards achieving a Supreme Court that understands the way the law affects individual Americans. In her hearings, Solicitor General Kagan made clear that, unlike the current Court, she understands that corporate interests shouldn’t be allowed to run rampant over the rights of individual Americans.

It’s frankly puzzling that the GOP seems dead set on opposing that principle. Throughout much of the hearings, Republican senators lavished praise on Citizens United v. FEC, a decision that gave corporations unchecked rights to buy elections and which most Americans abhor. Given the national outrage at companies like BP and Goldman Sachs, it’s surprising that the GOP would expend so much breath pining for a Supreme Court Justice who would give even greater deference to corporations while slamming the door on individual Americans fighting for their rights.

Apparently, the ‘Party of No’ can’t stop from saying ‘Yes’ to corporate interests who want to get their way in the Supreme Court.

Fortunately for the country, the GOP has been unable to block the confirmation of this supremely qualified nominee. But as we’ve noted, their largely under-the-radar obstructionism on lower priority nominations is still going strong.

We talk a lot about the purely political motives Republican senators have in their efforts to slow down the confirmation process for President Obama’s judicial nominees. It’s easy to forget that who those nominees are—and when they start working— makes a huge difference. The Philadelphia Inquirer reported this weekend that nearly 40% of all federal judges currently on the bench were appointed by George W. Bush--who made a concerted effort to appoint judges with right-wing credentials, and, you might say, didn’t put much of a priority on gender or racial diversity.

Obama, in contrast, has returned to a more bipartisan appointment process and has a notably diverse list of appointees. But thanks to Republican obstruction, Obama’s appointees aren’t making it to the bench:

So far, nearly half of Obama's 73 appointments to the federal bench have been women, 25 percent have been African American, 11 percent Asian American, and 10 percent Hispanic. About 30 percent of Obama's nominees were white males. By contrast, two-thirds of George W. Bush's nominees were white males.

Obama's rate of appointing women and people of color is higher than those of any of his predecessors during the first year of their terms. But he is not the only one setting records.

According to a report by the Alliance for Justice, a liberal advocacy group: "The Senate confirmed both fewer nominees and a smaller percentage of nominees under President Obama than under any other previous five presidents during their first year in office."

Presidents Jimmy Carter and Ronald Reagan had 91 percent of their nominees confirmed in their first year in office. Since then, however, the figure has sharply declined, with George H.W. Bush getting 65 percent of his early judicial nominees confirmed, followed by Bill Clinton at 57 percent, George W. Bush at 44 percent, and Obama at 36 percent.

As recent events in the Fifth Circuit reminded us, it really does matter who ends up in federal judgeships. And Republicans, booted from control of the legislative and executive branches, are fighting tooth and nail to keep the courts.
 

Last weekend, Senator Claire McCaskill put pressure on obstructionist Republicans, announcing that she had enough votes to end the Senate practice of placing anonymous holds on executive nominees. As McCaskill explained in her recent Huffington Post piece, “someone, it seems, secretly has a problem with these nominations but they don't want to be open and transparent about it.”

Apparently, the pressure worked: on Tuesday, 60 backlogged Obama choices were finally cleared by the Senate after months of Republican stonewalling. The confirmations represented a small victory over Senate Republicans’ unprecedented obstructionism, which has plagued the last year and a half of crucial legislative work. The GOP has not only placed an absurd number of anonymous holds on executive nominees; they’ve also set an all-time record on misusing the filibuster to waste the Senate’s time and slow down important government business. Even after Tuesdays slew of confirmations, dozens of nominees remain unconfirmed – as compared to only thirteen at this time in George W. Bush’s presidency.

It’s clear that the Republicans in question don’t have substantive problems with the President’s nominees. Instead, they’re abusing Senate procedure to intentionally disrupt government functions. It’s time for a change in the way the Senate operates, and thanks to Senator McCaskill and her colleagues, we may soon have one.

Today’s nominations obstruction update:

With the Senate facing a full legislative calendar and a Supreme Court debate ahead, the outlook for the more than 100 names on the executive calendar appears grim for the rest of the year.

As we have pointed out before, the Senate GOP’s zeal for holding up the president’s nominees not normal.
 

The AP has counted up the presidential nominees currently awaiting Senate confirmation. Most of those nominations are being held up by individual Republican senators. Most of those senators remain anonymous. There’s quite a logjam:

These "holds," which frequently have nothing to do with the qualifications of the nominee, have only become more prevalent as the Senate becomes more partisan. As of this week, 91 of President Barack Obama's nominees awaiting confirmation votes were on the Senate's calendar. Almost all of them were entangled in some sort of hold.

At the same time in George W. Bush's first term, there were only eight nominees awaiting Senate action.

Many of Obama's stalled nominees are in line for what appear to be noncontroversial jobs in agencies such as the Peace Corps, Amtrak and the Marine Mammal Commission. Some confirmation delays, however, are clearly disruptive.

The National Transportation Safety Board met Tuesday to discuss findings from last year's ditching of an airliner in New York's Hudson River. But only three of the five board members were there because the Senate hasn't acted on two nominees, one a Democrat and one a Republican. The Democrat has been on the Senate's docket since December.

NPR has a list of 83 nominations that are currently on hold. In limbo along with two fifths of the TSA board are Obama’s picks to fill high-level positions in the Commerce, Energy, and State Departments and the Federal Aviation Administration. In only 10 of the 83 cases has the Senator holding up the process copped to it.

UPDATE: The White House has released its own list of nearly a hundred nominees waiting for a Senate floor vote.