Obstruction

GOP obstruction on the Defense bill is stopping more than DADT repeal

Yesterday, Majority Leader Reid gave a floor speech about the Senate’s lame duck agenda.

 

Mr. President, as far as lameduck sessions of the Senate go, our agenda is rather ambitious, and the session itself is relatively long. It did not have to be this way. We have tried many times this Congress to tackle each of the priorities on our agenda. Each time we have tried, the minority has tried to shut down the Senate. Republicans ground the Senate to a halt and forced endless hours of inactivity. That is why we were here voting on Sunday--on Saturday; I am sorry. Thank goodness it was not on Sunday. That is why we will still be here another few weeks.

We have a long to-do list. But these priorities are not mere leftovers. They are critical to our economy and our national security, to our families and our country's future, and we will resolve them before we adjourn.

[. . .]

Obstruction has consequences. None of the issues on this long list is new. Neither is the minority's effort to keep the Senate from working and keeping Senators from doing our jobs.

It is time to roll up our sleeves--not dig in our heels. My hope for the final weeks of this year is that Republicans finally will realize we all have much more to gain by working together than working against each other.

That got me thinking about Don't Ask, Don't Tell. Its repeal constitutes just 4 pages (203-207) of the 854-page FY11 Defense authorization bill. That means GOP obstruction is holding up a bill over just 0.47% of its text.

So what’s in the other 99.53%?

As Majority Leader Reid points out:

We are also going to repeal the discriminatory don't ask, don't tell rule. We are going to match our policy with our principles and finally say that in America everyone who steps up to serve our country should be welcomed.

Republicans know they do not have the votes to take this repeal out of the Defense authorization bill, so they are holding up the whole bill. But when they refuse to debate it, they also hold up a well-deserved raise for our troops, better health care for our troops and their families, equipment such as MRAP vehicles that keep our troops safe, and other critical wartime efforts in Afghanistan and counterterrorism efforts around the world.

We’ve been waiting 17 years for the repeal of Don't Ask, Don't Tell. But our troops are also waiting. The Senate must act posthaste on the FY11 Defense authorization bill. Take care of repeal. Take care of our troops. Take care of our nation’s defense.

Don’t let anyone tell you that neither the will nor the time are available. Show the Senate that they are. Click here to contact your Senators, and here for information about this Friday’s rally at the Capitol.

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Senate Majority Leader Harry Reid Files Cloture on DREAM Act

Because, thanks to the ongoing GOP obstruction in the Senate, virtually nothing can get done without a time consuming cloture vote, Senate Majority Leader Harry Reid filed cloture late yesterday on the motion to begin debate on the DREAM Act. If passed, the legislation would allow undocumented immigrants who were brought to the United States as children to gain legal status and a path to citizenship if they attend college or join the armed forces.

The Brookings Institution gives a rundown of what the legislation includes:

The Development, Relief and Education of Alien Minors (DREAM) Act would offer conditional citizenship to a specific group of young individuals. To gain conditional status under the DREAM Act one must have entered the United States before the age of 16, been in the country continuously for five years, earned a high school diploma (or GED) and not committed any crimes that would otherwise restrict someone from entering the country. During a six-year period of conditional status, this group will have been required to complete two years in uniformed service or two years enrolled at an institution of higher learning, and must pass a second criminal background check before being considered for full citizenship. It should also be noted that the DREAM Act only applies to young people currently in the country so that it will not encourage additional families to bring children to the U.S. looking for benefits.

The bill seems to have plenty of support. Orrin Hatch, Sam Brownback, Susan Collins and Olympia Snowe have all supported it in the past. But when it comes to Republican obstruction, good policy takes a backseat to good politics.

By filing the cloture petition, Reid will be able to hold the vote on cutting off debate and then proceeding to consideration of the bill on Wednesday. We’ll keep you posted as the issue moves forward.

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The Long Term Cost of GOP Obstruction

Usually when we talk about Republican obstruction, it’s to explain the immediate problems that need to be fixed, but can’t because Republican Senators won’t let the solutions come up for a vote—an understaffed Department of Justice, empty seats languishing on the federal judiciary, an impending budget deadline, etc.

Currently, for example, there are 34 judicial nominees pending on the Senate floor, the vast majority of which are to fill vacancies deemed “judicial emergencies.” 26 of those nominees have faced no Republican opposition; one received only one negative vote - but all of them are held up anyway, waiting endlessly to start their new jobs.

But perhaps the most damaging effect of this delay won’t become apparent for years. Delaying simple confirmation votes forces nominees to put their lives on hold for months or even years, for a job with longer hours and less pay than they could find elsewhere. The excruciatingly long confirmation process is making it harder and harder to recruit qualified candidates to fill critical government positions.

Already, some nominees have decided that they couldn’t, or didn’t want to, deal with the ugly process any longer.

Dawn Johnsen, President Obama’s pick to head the Office of Legal Counsel, eventually withdrew her name because Republican senators so politicized her nomination that they undermined her primary goal of depoliticizing the OLC itself. Mary Smith, nominated to head the Tax Division of the Justice Department, asked for her name to be withdrawn when she concluded GOP obstruction would drag on for months longer. And any number of judicial nominees have displayed borderline heroism by sitting by silently as their reputations are smeared by critics playing fast and loose with the truth.

After seeing the treatment that even exceedingly well qualified nominees receive from the Senate, should it be any surprise if well qualified individuals in the future just decide that they don’t want the trouble?

Of course, if you’re in the business of attacking the Obama Administration at all costs, maybe scaring off qualified government officials isn’t a problem, it’s the goal.

 

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Democrats Eschew Republican Example and Follow the Constitution

This week, Americans get to see the difference between a party that respects the rule of law and one that holds it in contempt.

Earlier this week, Senate Democrats got a food safety bill passed - then discovered a procedural problem with constitutional implications: One section of the Senate bill would raise revenue, but the Constitution requires revenue bills to originate in the House. Now, in the face of Republican obstruction, Democratic leaders are working to figure out how to get the bill passed correctly before time runs out.

While the headlines are on the mistake, the main focus really should be on how Democratic leaders are responding appropriately to it - in stark contrast to how Republican leaders dealt with a similar foul-up in February 2006, when they controlled Congress. GOP leaders sent a bill for the president's signature that they knew had not passed the House.

The Deficit Reduction Omnibus Reconciliation Act of 2005 squeaked through the Senate after Vice President Cheney cast the tie-breaking vote. But when the bill was transmitted to the House, in a mistake that no one noticed at the time, one of the numbers in the bill text was changed, changing the rights of Medicare recipients and creating a $2 billion difference between the two bills. The House passed its version with a bare two-vote margin. Then Republican leaders discovered that the two chambers had voted on different bills, meaning that a basic constitutional requirement had not been met.

Having a revote would have been politically difficult. So, faced with a choice between their partisan political agenda and the United States Constitution, GOP leaders chose ... politics. They sent the Senate version to the White House for President Bush's signature, with the Republican Speaker's false certification that it had passed both chambers.

As the Washington Post reported at the time:

Once the mistake was revealed, Republican leaders were loath to fight the battle again by having another vote, so White House officials simply deemed the Senate version to be the law. ...

The issue would be solved if the House voted again, this time on the version that passed the Senate. But that would mark the third time House members would have to cast their votes on a politically difficult bill, containing cuts in many popular programs, and it would be that much closer to the November election.

The way the two parties handled similar situations speaks volumes about their commitment to the Constitution and the rule of law.

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Republican Judges Against Republican Obstruction

Add another set of voices to the growing chorus of Americans fed up with Republican leaders' unprecedented obstruction of judicial nominations: Federal judges nominated by Republican presidents. According to ThinkProgress:

[Last] week, seven Republican-appointed federal judges co-signed a letter warning of the consequences of the GOP's systematic obstruction of President Obama's judges. The letter [is] from the Judicial Council of the Ninth Circuit, which includes Republican appointees Alex Kozinski, Ralph Beistline, Vaughn Walker, Irma Gonzales, Frances Marie Tydingco-Gatewood, Richard Frank Cebull, [and] Lonny Ray Suko[.]

The letter states:

In order to do our work, and serve the public as Congress expects us to serve it, we need the resources to carry out our mission. While there are many areas of serious need, we write today to emphasize our desperate need for judges. Our need in that regard has been amply documented ... Courts cannot do their work if authorized judicial positions remain vacant.

While we could certainly use more judges, and hope that Congress will soon approve the additional judgeships requested by the Judicial Conference, we would be greatly assisted if our judicial vacancies - some of which have been open for several years and declared "judicial emergencies" - were to be filled promptly. We respectfully request that the Senate act on judicial nominees without delay.

Americans want a government that works. Why don't Senate Republican leaders agree?

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People For and Progressive Groups Urge Senate to Break Confirmation Gridlock

This week, People For and 46 other progressive groups sent a letter to the leaders of the U.S. Senate urging them to end the backlog of judicial nominees before the end of this session of Congress. Republican obstruction has prevented dozens of nominees from even receiving a vote on the Senate floor, leaving the federal court system with over 100 vacancies and the slowing down the process of bringing more diversity to the federal bench. Read the full letter:

Dear Majority Leader Reid and Minority Leader McConnell:

The undersigned organizations strongly urge you to end the troubling backlog of judicial nominees that exists to date in the 111th Congress. The obstruction of many of President Obama’s nominees through filibuster threats and anonymous “holds” is hindering the important work of our judicial branch, particularly in the many areas of our nation that now face judicial emergencies due to unfilled vacancies on the bench.

Throughout the 111th Congress, President Obama has worked with the Senate on a bipartisan basis to select extraordinarily well-qualified judicial nominees who could easily be confirmed by wide margins and begin serving the public, if brought to a vote before the full Senate. Yet a troubling number of these nominees, many of whom have been cleared by the Committee on the Judiciary with little or no opposition, have been blocked from up-or-down confirmation votes for reasons that defy explanation. Indeed, many of President Obama’s judicial nominees who have been confirmed, to date, have been confirmed by unanimous votes – but only after languishing for many months on the Senate floor, raising significant doubts about the legitimacy of the ongoing delays in confirmation proceedings.

Due to arcane floor procedures that allow a single member to impede the important business of the Senate, our judicial branch has reached a state of crisis. Out of 872 federal judgeships, 106 are currently vacant, with 50 of those vacancies now characterized as “judicial emergencies” in which courts are being overwhelmed by filings that cannot be considered. As a result, a growing number of Americans, from all walks of life and across all economic strata, are finding it increasingly more difficult to assert their legal rights and to have their fair day in court.

In the meantime, the Senate is badly failing in its constitutionally-mandated role of considering the nominees that President Obama has selected. Prior to entering its pro forma session, the Senate failed to confirm any of the 23 nominees who are currently pending on the Senate floor, 17 of whom advanced through the committee process with no opposition whatsoever. Moreover, 11 of the pending nominees would fill seats designated as judicial emergencies – and more than half of the pending nominees are people of color, while 10 of them are women, who would bring badly-needed and long-overdue diversity to our judicial branch.

We write to you at a time when our nation faces numerous challenges that cry out for bipartisan cooperation, including major economic challenges and continued international threats. We strongly believe that the continued obstruction of nominations will poison the political atmosphere, needlessly heighten partisan tensions, and make it far more difficult for the federal government to serve the public interest in any respect. These consequences are all but certain to continue into the 112th Congress and beyond.

For these reasons, in the remaining weeks of the 111th Congress, we strongly urge you to work together in a bipartisan fashion to proceed with confirmation votes on the two dozen judicial nominees who remain pending on the Senate floor. Thank you for your consideration.

Sincerely,

AFL-CIO

Alliance for Justice

American-Arab Anti-Discrimination Committee

American Association for Affirmative Action

American Association of People with Disabilities

American Association of University Women

American Federation of Government Employees

American Federation of Teachers

Americans for Democratic Action

Asian & Pacific Islander American Health Forum

Asian American Justice Center

Common Cause

Constitutional Accountability Center

Equal Justice Society

Families USA Foundation

Feminist Majority

Hispanic National Bar Association

Hispanics for a Fair Judiciary

Human Rights Campaign

Japanese American Citizens League

Judge David L. Bazelon Center for Mental Health Law

Lambda Legal

Lawyers’ Committee for Civil Rights Under Law

The Leadership Conference on Civil and Human Rights

League of United Latin American Citizens

Legal Momentum

Mexican American Legal Defense and Educational Fund

NAACP

NAACP Legal Defense & Educational Fund, Inc.

National Asian Pacific American Bar Association

National Asian Pacific American Families Against Substance Abuse

National Asian Pacific American Women's Forum

National Association of Consumer Advocates

National Association of Human Rights Workers

National Association of Social Workers

National Black Justice Coalition

National Congress of Black Women, Inc.

National Council of Jewish Women

National Disability Rights Network

National Employment Lawyers Association

National Fair Housing Alliance

National Partnership for Women & Families

National Urban League

National Women’s Law Center

OCA

People For the American Way

Secular Coalition for America

SEIU

Sikh American Legal Defense and Education Fund

Sikh Coalition

 

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Former Bush Lawyer: Stop Partisan Bickering and Confirm Liu

The Blog of the Legal Times is reporting that Senate Majority Leader Harry Reid is planning to call Senate Republicans on their obstruction of judicial nominees and break the gridlock that has kept four of these nominees pending, in some cases for over a year. Reid will attempt to stop the Republican filibuster of Ninth Circuit nominees Goodwin Liu and Edward Chen, Rhode Island District Court nominee John McConnell, and Wisconsin District nominee Louis Butler. 

This is a critical moment for these nominees, who despite support from their home-state senators and endorsements across the ideological spectrum, have for various reasons been branded as “too extreme” by obstructionist Republicans in the Senate. McConnell has been up against an expensive lobbying campaign from the Chamber of Commerce, which objects to his work as a public interest lawyer representing victims of lead paint poisoning. Butler has been up against business interests who don’t think he was friendly enough to them when he was on the Wisconsin Supreme Court. Chen was accused by Jeff Sessions, the top Republican on the Senate Judiciary Committee of having an apparently disqualifying “ACLU chromosome.”

Liu’s nomination has been the subject of the most partisan squabbling. Liu’s main obstacle, it seems, has been his own brilliance: some on the Right worry that if he makes it on to the bench, he could eventually become a Supreme Court nominee. But Liu’s nomination is backed by legal luminaries from across the ideological spectrum, including former Bush White House lawyer Richard Painter, who today wrote another plea for the Senate GOP to break the judicial gridlock and at least take a vote on Liu’s nomination:

In any event, nominees who should not be controversial, including Goodwin Liu (I have made previous posts here on his nomination), are described as radical activists, the same tactic that advocacy groups deployed to mischaracterize many of President Bush’s nominees.

Public opinion of Members of Congress (both parties) these days is lower, far lower, than it was in the days when Senator Henry Cabot Lodge used just the right term to describe what he saw going on when Senators filibustered legislation. Those of us who care about the future of the judiciary should make it clear that the delay must stop.

This does not mean the Senators should vote "yes". They can vote "no". But they should vote.

Specific nominations aside, the federal judicial system in general has taken a drubbing under the Senate GOP’s refusal to confirm nominees. A new report from the Alliance for Justice has found that the number of vacancies in the federal judiciary has nearly doubled since President Obama took office, and that the number of open seats designated as “judicial emergencies” has risen from 20 to 50, affecting 30 states.

Confirmation votes will become much more difficult next year, with Democrats hanging on to a much slimmer majority in the Senate. Now’s the time to push through the nominees whom the GOP has been the most eager to obstruct.
 

PFAW

Tracking the Obstruction: Obama v. Bush

Last month I helped you decipher what progress does and doesn’t mean for executive branch nominations being considered in the Senate. I can now add that President Obama’s executive branch nominations are generally lagging behind President Bush’s when it comes to the Executive Calendar (list of all treaties and nominations that are ready to be taken up on the Senate floor).

On 11/12, the average age of Cabinet nominations ever placed on the Calendar was 34 days, and the average time spent on the Calendar was 10 days. That sounds pretty low, right? Well, it’s not when compared to President Bush’s rates at that same time – an average age of 12 days and an average time of 3 days. Even at the end of his Administration, President Bush was still way ahead of President Obama – an average age of 25 days and an average time of 7 days.

The same holds true for lower level nominations and when you count both Cabinet and lower level together – with one caveat.

On 11/12, the average age of lower level nominations ever placed on the Calendar was 103 days, and the average time spent on the Calendar was 36 days. For President Bush at that same time it was an average age of 68 days and an average time of 16 days. When you count both Cabinet and lower level together, President Obama’s average age was 102 days and the average time was 36 days, with President Bush at 66 days and 16 days at that same time.

The caveat: the numbers draw much closer or even level out by the time you get to the end of the Bush Administration. Where President Obama was at 103 days and 36 days for lower level nominations, President Bush finished out at 103 days and 30 days. Where President Obama was at 102 days and 36 days when you count both Cabinet and lower level together, President Bush finished out at 102 days and 29 days.

It might help to look at the charts from which these statistics were drawn. Please click here to go to our latest report on executive branch nominations. See the “Executive Calendar” section starting on page 3.

So why is there any holdup at all? Simple. Senate Republicans have thus far made the decision to do whatever they can to trip up President Obama, even if that means denying the country a fully-staffed government doing the best possible work. After all, who has time to actually govern when the next presidential election is just two years away?

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Rogues to Watch Out For

Whatever the results of today’s elections, there’s little doubt that the incoming Congress will shift drastically to the Right. How far right?

In a new piece in the Huffington Post, People For’s president, Michael Keegan, examines some of the trends among front-running GOP candidates this year, including extreme anti-government views (to the point of abolishing the Department of Education and phasing out Social Security) and a loyal allegiance to Big Business. We’ll be watching how these issues play out in today’s election…but what about when some of these folks are in office?

Ezra Klein writes today about the “end of the do-something Congress.” Despite GOP obstruction, the 111th Congress has pushed through some huge legislative initiatives—from Health Care Reform to the Stimulus to the Lily Ledbetter Fair Pay Act.

Republican leaders have promised that if they retake majorities in Congress, their main goal will be legislative gridlock. Senate GOP leader Mitch McConnell put it like this: “The single most important thing we want to achieve is for President Obama to be a one-term president.”

It’s a dismal goal for people supposedly in the public service business. But what the focus on the coming GOP gridlock hides is what the new far-right GOP would do if they didn’t face any opposition from a strong progressive presence in Congress or the executive branch. As today’s Huffington Post piece and our Rogues Gallery of right-wing candidates explain, it’s not pretty.
 



Pat Toomey

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Why Are Republicans Opposing a Judiciary That Looks Like America?

With Republican Senators refusing to allow votes even on nominees who they do not oppose, they are depriving courts across the nation of the judges needed to ensure justice for all. In fact, the Senate recessed last week without confirming a single one of the 23 pending nominees approved by committee and ready for a floor vote. Eleven of these nominees – half the total – would fill vacancies officially designated as "judicial emergencies."

Amazingly, 17 of these 23 nominees advanced through committee without opposition, so it's not like there is any principled reason behind the Republican obstruction.

This slate of highly qualified nominees is a testament to the great diversity of our nation. Indeed, more than half of them are people of color, with six African Americans, three Latinos, and four Asian Americans among them. Ten of the 23 are women. Among the nominees needed to resolve judicial emergencies, two-thirds are people of color.

For much of our nation's history, judges were uniformly white men. When women argued for equality under the law, they were repudiated with sexist arguments that only men could have come up with. African Americans were told that separate can be equal. Native Americans were told that they never really owned the land they had been on for centuries, but were only in temporary possession of it until Europeans arrived.

A judiciary that looks nothing like America is far less likely to understand how the law affects other people, a misunderstanding that has often led to great injustice. As Republicans exacerbate judicial emergencies, their obstruction is preventing us from having a judiciary that looks more like America.

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Tracking the Obstruction: Lifting the Veil of Progress

In the last week of its fall session, the Senate confirmed 54 executive branch nominations. But we haven’t necessarily made progress just because 54 positions are now full.

I took a look at the Executive Calendar (list of all treaties and nominations that are ready to be taken up on the Senate floor) as it stood on 9/24. Then I compared it to 10/4, after the Senate left town.

I will admit that the Senate did take some steps forward.

35 of the 54 executive branch confirmations came straight off the Calendar. There were fewer executive branch nominations on the Calendar who were 90 days old or more (22 down from 40). There were also fewer executive branch nominations that had spent 90 days or more on the Calendar (17 down from 19).

But who’s left?

On 9/24, the average age of executive branch nominations on the Calendar was 189 days, and the average time spent on the Calendar was 95 days.

By 10/4, the average age had increased to 287 days, and the average time spent on the Calendar had increased to 195 days.

What does this mean?

The Senate may be doing its job, but it’s not fighting the toughest battles when it comes to executive branch nominations. The nominations left behind are those that have been waiting the longest. Less controversial people are moving through quickly while political obstruction continues to stall others.

Let’s not forget the recess appointees.

Only 5 of 22 recess appointees have gone on to confirmation. 17 are still pending before the Senate. 13 of those are stuck on the Calendar.

Please click here for our latest report on executive branch nominations.

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Obama to Senate: Stop Playing Games with the Courts

On Wednesday night, the Senate left for recess without confirming a single one of the 23 judicial nominees who had been waiting for a vote, most of them for several months. The GOP blocked the majority of these nominees not because of ideology—19 were approved unanimously by the Judiciary Committee—but just for the sake of obstruction. President Obama responded yesterday with this letter to Senate leaders:

Dear Senator Reid, Senator McConnell, Senator Leahy, and Senator Sessions:

I write to express my concern with the pace of judicial confirmations in the United States Senate. Yesterday, the Senate recessed without confirming a single one of the 23 Federal judicial nominations pending on the Executive Calendar. The Federal judiciary and the American people it serves suffer the most from this unprecedented obstruction. One in eight seats on the Federal bench sits empty, and the Administrative Office of the U.S. Courts has declared that many of those vacancies constitute judicial emergencies. Despite the urgent and pressing need to fill these important posts, a minority of Senators has systematically and irresponsibly used procedural maneuvers to block or delay confirmation votes on judicial nominees – including nominees that have strong bipartisan support and the most distinguished records. The minority has even been blocking non-controversial nominees – a dramatic shift from past practice that could cause a crisis in the judiciary.

The Judiciary Committee has promptly considered my judicial nominees. Nonetheless, judicial confirmation rates in this Congress have reached an all-time low. At this point in the prior Administration (107th Congress), the Senate had confirmed 61% of the President’s judicial nominations. By contrast, the Senate has confirmed less than half of the judicial nominees it has received in my Administration. Nominees in the 107th Congress waited less than a month on the floor of the Senate before a vote on their confirmation. The men and women whom I have nominated who have been confirmed to the Courts of Appeals waited five times longer and those confirmed to the District Courts waited three times longer for final votes.

Right now, 23 judicial nominees await simple up-or-down votes. All of these nominees have the strongest backing from their home-state Senators – a fact that usually counsels in favor of swift confirmation, rather than delay. Sixteen of those men and women received unanimous support in the Judiciary Committee. Nearly half of the nominees on the floor were selected for seats that have gone without judges for anywhere between 200 and 1,600 days. But despite these compelling circumstances, and the distinguished careers led by these candidates, these nominations have been blocked.

Judge Albert Diaz, the well-respected state court judge I nominated to the U.S. Court of Appeals for the Fourth Circuit, has waited 245 days for an up-or-down vote – more than 8 months. Before becoming a judge, Diaz served for over 10 years in the United States Marine Corps as an attorney and military judge. If confirmed, he would be the first Hispanic to sit on the Fourth Circuit. The seat to which he was nominated has been declared a judicial emergency. Judge Diaz has the strong support of both of North Carolina’s Senators. Senator Burr has publicly advocated for Judge Diaz to get a final vote by the Senate. And just before the August recess, Senator Hagan went to the floor of the Senate to ask for an up-or-down vote for Judge Diaz. Her request was denied.

We are seeing in this case what we have seen in all too many others: resistance to highly qualified candidates who, if put to a vote, would be unanimously confirmed, or confirmed with virtually no opposition. For example, Judge Beverly Martin waited 132 days for a floor vote – despite being strongly backed by both of Georgia’s Republican Senators. When the Senate finally held a vote, she was confirmed to the Eleventh Circuit unanimously. Jane Stranch was recently confirmed by an overwhelming majority of the Senate, after waiting almost 300 days for a final vote. Even District Court nominees have waited 3 or more months for confirmation votes – only to be confirmed unanimously.

Proceeding this way will put our judiciary on a dangerous course, as the Department of Justice projects that fully half of the Federal judiciary will be vacant by 2020 if we continue on the current pace of judicial confirmations. The real harm of this political game-playing falls on the American people, who turn to the courts for justice. By denying these nominees a simple up-or- down vote, the Republican leadership is undermining the ability of our courts to deliver justice to those in need. All Americans depend on having well-qualified men and women on the bench to resolve important legal matters – from working mothers seeking timely compensation for their employment discrimination claims to communities hoping for swift punishment for perpetrators of crimes to small business owners seeking protection from unfair and anticompetitive practices.

As a former Senator, I have the greatest respect for the Senate’s role in providing advice and consent on judicial nominations. If there is a genuine concern about the qualifications of judicial nominees, that is a debate I welcome. But the consistent refusal to move promptly to have that debate, or to confirm even those nominees with broad, bipartisan support, does a disservice to the greatest traditions of this body and the American people it serves. In the 107th Congress, the Judiciary Committee reported 100 judicial nominees, and all of them were confirmed by the Senate before the end of that Congress. I urge the Senate to similarly consider and confirm my judicial nominees.

Back in June, President Obama made a similar plea in a meeting with Senate GOP leaders, but apparently bipartisan cooperation on something as straight-forward as filling seats in the judiciary wasn’t on their list of priorities.

(I also want to point out that while the GOP is holding up most of the 23 stalled nominees for absolutely no reason, there are a handful of nominees who certain GOP senators actively oppose. We’ve explored some of the reasons for this opposition here and here and here.)
 

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“The ACLU Chromosome” and other judicial disqualifiers

Politico today outlines an emerging trend in judicial obstruction. While partisan battles over judicial nominees have in past years focused on the occasional appellate court judge or Supreme Court justice, these days even nominees to lower-profile district courts are fair game for partisan obstructionism. Among other problems, this doesn’t make it easy to keep a well-functioning, fully staffed federal court system:

According to data collected by Russell Wheeler of the Brookings Institution and analyzed by POLITICO, Obama’s lower-court nominees have experienced an unusually low rate of confirmation and long periods of delay, especially after the Senate Judiciary Committee has referred the nomination for a confirmation vote by the full Senate. Sixty-four percent of the district court nominees Obama submitted to the Senate before May 2010 have been confirmed — a number dwarfed by the 91 percent confirmation rate for Bush’s district court nominees for the same period.

But analysts say the grindingly slow pace in the Senate, especially on district court nominations, will have serious consequences.

Apart from the burden of a heavier case load for current judges and big delays across the federal judicial system, Wheeler, a judicial selection scholar at Brookings, says that potential nominees for district courts may think twice before offering themselves up for a federal nomination if the process of confirmation continues to be both unpredictable and long.

"I think it means first that vacancies are going to persist for longer than they should. There’s just not the judge power that there should be," Wheeler said. And private lawyers who are not already judges may hesitate to put their practices on hold during the confirmation process, he added, because "you can’t be certain that you’ll get confirmed" for even a district judgeship, an entry-level position to the federal bench.

Jeff Sessions, the top Republican on the Judiciary Committee, has been at the lead of the GOP’s obstruction of every judicial nominee who can possibly be obstructed. He told Politico that he simply wants to make sure every new federal judges passes his litmus test: "If they’re not committed to the law, they shouldn’t be a judge, in my opinion."

Sounds fair. But the problem is, of course, that Sessions’ definition of “committed to the law” is something more like “committed to the way Jeff Sessions sees the law.”

In a meeting yesterday to vote on eight judicial nominees-- five of whom were going through the Judiciary Committee for the second or third time after Senate Republicans refused to vote on their nominations--Sessions rallied his troops against Edward Chen, nominated to serve as a district court judge in California. Chen is a widely respected magistrate judge who spent years fighting discrimination against Asian Americans for the American Civil Liberties Union. But Sessions smelled a rat: Chen, he said, has “the ACLU chromosome.”

The phrase really illuminates what Sessions and his cohort mean when they talk about finding judges “committed to the law” or who won’t stray from “the plain words of statutes or the Constitution.” It isn’t about an “objective” reading of the Constitution. It’s about appointing judges who will find ways to protect powerful interests like Exxon, BP, and the Chamber of Commerce, while denying legal protections to working people, women, racial, ethnic, and religious minorities, and gays and lesbians.

(Sessions himself was nominated for a judgeship in 1986, but was rejected by a bipartisan majority of the Senate Judiciary Committee for his history of not-so-ACLU-like activity).

Sessions’ warns that “Democrats hold federal judiciary as the great engine of the left,” but the reality is far from that. Besides having the most conservative Supreme Court in decades, nearly 40% of all current federal judges were appointed by George W. Bush, who made a point of recruiting judges with stellar right-wing credentials.

No matter how much disarray it causes in the federal courts, it’s in the interest of Sessions and the Right Wing to keep the number of judicial seats President Obama fills to a minimum. If they succeed, they keep their conservative, pro-corporate courts, tainted as little as possible by the sinister “ACLU chromosome.”
 

PFAW

Hung out to dry

Republicans have given us a sneak peek of what they have in store for America if they succeed in taking over Congress on Election Day ... and it's not pretty.

On Tuesday, Republican senators voted in lockstep to block the repeal of Don't Ask, Don't Tell and the DREAM Act... just yesterday, they voted in unity to block the DISCLOSE Act for the second time. Corporate special interests are drowning out the voices of regular voters by dumping hundreds of millions of dollars into this year's elections, and every single Republican voted to block a bill that would add some basic fairness by simply requiring disclosure of who is behind political ads. Every. Single. Republican.

The unprecedented obstruction just does not stop. President Obama's judicial nominees have been held up endlessly. In some cases, they've needed to be re-nominated and have multiple Judiciary Committee votes despite being approved by the Committee the first time. Some of these nominees even passed in Committee unanimously, with no Republican opposition, but the "Party of No" has been intent on blocking even the most uncontroversial nominees from the Senate floor. Meanwhile, there are vacancies on the federal courts -- 11 seats of the 23 pending on the nominations calendar -- that have been declared "judicial emergencies" by the Administrative Office of the Courts. Our judicial system is hurting and so is Americans' access to justice.

It's not just the Senate. Yesterday, the House passed legislation to help small businesses, but only because of the Democratic majority -- just like with the DISCLOSE Act in the Senate, every single Republican voted "no." This vote came on the very same day that the GOP House Leadership released its "Pledge to America" -- in the rollout, Minority Leader Boehner and his cohorts mentioned "small businesses" no fewer than 18 times. The hypocrisy is simply staggering.

In both the Senate and the House, Republicans have consistently opposed tax relief for small businesses and the middle class, justifying their obstruction with phony, hypocritical arguments about spending. Republicans have tried to block extensions of unemployment benefits and aid for homeowners to prevent foreclosures, and Sen. Tom Coburn (R-OK) is even blocking a food safety bill that passed in the House with bipartisan support last summer and has overwhelming support from consumer groups. Meanwhile, Republicans are pushing to add billions, if not trillions, to the deficit by extending the Bush tax cuts for the richest 2%.

The Republicans have a clear agenda: to serve corporate special interests. They want to take back Congress but it's their policies that sunk our economy in the first place -- policies that encourage the outsourcing of jobs, allow Wall Street greed to go unchecked and punish middle and working-class families. They pretend to be on the side of small businesses because it's politically expedient, but even as they complain that letting the Bush income tax cuts expire for the top 2% hurts small business, the facts tell a different story as more than 98% of tax filers with small business income are not in that top 2% of the income tax. The Republican definition of "small business" is a mega corporation like Bechtel or PricewaterhouseCoopers. The only part of America to which they will ever make good on any "pledge" is Corporate America... and they'll do that at any cost. Perhaps that's why the GOP staffer who headed up the development of the "Pledge to America" was, up until April, a lobbyist for some of the most powerful oil, insurance and pharmaceutical and other corporate interests in the country -- including Exxon, AIG, Pfizer and the Chamber of Commerce.

So let's recap. Just this week, Republicans have proven their disdain for soldiers, students, the hurting middle class and even food consumers... Is there anyone they haven't left hung out to dry? Oh yeah... corporate special interests.

We can not put these people in charge again.

UPDATE: Add women to the groups of people Republican senators have hung out to dry just during the last weeks of September.

PFAW

Unprecedented Obstruction: Exhibit "A"

Sen. Sheldon Whitehouse just made a forceful presentation at the Senate Judiciary Committee business meeting about the unprecedented obstruction currently being waged by Republicans against judicial nominees. The statistics are powerful: from 1949, when Senate rules were changed to provide for cloture votes on nominees, until 2009, only three cloture motions were filed on District Court nominees, and one of those was withdrawn.

By contrast, three District Court nominees were voted out of Committee for a second (John McConnell) or third (Edward Chen, Louis Butler) time today after Republicans refused to permit votes on their nominations and forced their re-nomination by the President--Exhibit "A" of this unprecedented obstruction.

PFAW

Is “Eagerness to Obstruct” a Requirement for New GOP Senators?

Yesterday, former New Hampshire Attorney General Kelly Ayotte narrowly defeated Tea Party insurgent Ovide Lamontagne in the state’s Republican senate primary.

Ayotte is hardly a political moderate—Sarah Palin has anointed her a “Mama Grizzly”—but that didn’t keep her from being attacked from the right. One of Lamontagne’s charges against her? Ayotte said that if she were in the Senate she would have voted to confirm Supreme Court Justice Sonia Sotomayor.

Lamontagne’s full-on attack on Ayotte for conceding that Sotomayor was qualified to sit on the Supreme Court helped to propel him to within 2,000 votes of the much better-known, better-funded Ayotte. In addition to a lengthy screed on “Obama Judges” on his website, Lamontagne got a leg up from the conservative Judicial Crisis Network, which spent $50,000 on an ad campaign attacking Ayotte for her Sotomayor support.

Never mind that in 2009, a full nine Republican senators voted to confirm Sotomayor—including New Hampshire Senator Judd Gregg, who said of the nominee, “Her views and decisions, although strongly stated, are certainly not out of the mainstream of American jurisprudence or political thought."

Cooperating with the president to put moderate judicial nominees on the bench is apparently no longer a legitimate GOP position. Gregg (who is vacating the seat Ayotte is seeking) was one of only five Republicans to vote to confirm Supreme Court Justice Elena Kagan this spring. But the Kagan vote was an example of outright bipartisan bonhomie compared with the GOP’s stand on lower court nominees. Fewer Obama nominees have made their way through the Senate than under any president since Nixon—in a large part the result of the GOP’s unified refusal to vote on even those nominees with no Republican opposition.

By the time the Kagan nomination came around, Ayotte had learned her lesson on moderate judicial nominees, and issued a statement panning the Solicitor General. Ayotte’s struggle shows the enormous amount of energy the Right is spending on obstruction as a strategy in itself—and the danger for those who occasionally try saying something other than “No.”

 

 

PFAW

Important votes next week on DADT, DREAM, and secret holds

It could be a big week next week for the Senate. When Majority Leader Reid brings the FY 2011 Defense authorization bill to the floor, we are likely to see consideration of Don’t Ask, Don’t Tell, the DREAM Act, and secret holds.

Don’t Ask, Don’t Tell. According to PFAW’s Michael B. Keegan and Marge Baker, “Don’t Ask, Don’t Tell runs counter to the honesty and integrity we associate with the armed forces, not to mention the values of equality and freedom of expression espoused by our Constitution.” AAMIA’s Reverend Timothy McDonald, III and Reverend Dr. Robert P. Shine agree that LGBT individuals “share in the sacrifices made by their family, friends, and neighbors. They deserve to serve honestly and openly with dignity.” Conditional repeal passed as an amendment to the FY 2011 Defense authorization bill on the House floor and in the Senate Armed Services Committee. Now that the bill is coming to the Senate floor, repeal opponents may get a chance to modify that language or remove it entirely. We want to make sure that the current language remains intact as the bill goes into conference and eventually heads to the President’s desk.

The DREAM Act. Earlier this year, PFAW urged the Senate to take action on comprehensive immigration reform (CIR). And we urged both chambers to recognize LGBT families in their work. We have also been longtime supporters of the DREAM Act, a bill that would grant children of undocumented immigrants the opportunity to earn legal permanent resident status in the US. It may now see light of day as an amendment to the FY 2011 Defense authorization bill. Senators should take this opportunity to send a clear message that expanding access to higher education for these children – and for anyone – benefits them, benefits our economy, and benefits our country.

Secret holds. PFAW has been a staunch defender of Senate rules and procedure against unprecedented obstruction. Senator Wyden has also taken up this cause. He joined with Senators Grassley, McCaskill, Murray, and Sherrod Brown to introduce the Secret Holds Elimination Act, a bill that would require public disclosure of all objections. Attempts were made this summer to push such disclosure, and another is expected within the FY 2011 Defense authorization bill. No single Senator should be able to stop legislation or nominations without at least some measure of transparency and accountability.

These are not the only issues we’ll be monitoring next week, but they are three on which we expect votes. Please contact your Senators now.

PFAW

The Target Story and Disclosure

Target’s misguided donation to a pro-corporate, anti-gay Minnesota gubernatorial candidate has (with good reason) caused quite an uproar recently. But the dominant narrative – that Target will serve as a cautionary tale warning other big corporations against getting involved in politics – isn’t quite right.

As an NPR story yesterday made clear, the lesson of the Target story for many like-minded corporations is: don’t get caught.

Target gave to a group that is legally bound to identify its contributors. That's why Target's contribution became known.

Many other groups don't have to disclose a thing. So a company can channel its money — and its message — through a business association or an advocacy group, and outsiders will never know.

"Given all these different ways that you can spend your money without generating a national news story, certainly I think a lot of corporate executives are saying this is just a reminder to use all those other tools that we have in our tool kit," says Robert Kelner, a campaign finance lawyer in Washington.

The DISCLOSE Act, which was brought down by Republican obstruction earlier this summer, is likely to return to the Senate in September. Its passage would oblige all corporations to be transparent about their political involvement, making the Target story a true cautionary tale.

PFAW

The Party of No Lives Up to Its Name

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:


PFAW

GOP Obstructionists turn on 9/11 Victims

This video of Representative Anthony Weiner (D-NY) losing his temper on the House floor has been making the rounds in the blogosphere recently. What I find most compelling about the story, though, isn’t that Weiner raised his voice; it’s that he raised it against perhaps the most troubling example of GOP obstructionism yet.

Last week, the House tried to pass a bill to provide health care for the first responders who risked their lives to save their fellow Americans during the 9/11 World Trade Center attacks. Many of these heroes face lingering health problems in the aftermath of their exposure to toxic ash and other debris.

But, instead of actually voting on the bill, House Republicans blocked it, citing both procedural and ideological issues. Here’s how Representative Weiner describes the debate:

It was frustrating to hear Republicans say these people didn’t deserve more help because, as one put it, “people get killed all the time.” Others called it another big entitlement program. Some said it was a giveaway to New York, or complained that the bill would have been paid for by closing a tax loophole. We responded to each of these arguments over the summer in the hours of hearings and markups of the bill.

There were also Republican objections that we put the bill on the “suspension calendar,” which is generally used for noncontroversial legislation, as this measure should have been. This move meant that the bill required a two-thirds favorable vote for approval rather than a simple majority, but it also kept the bill from getting bogged down in debate and stuck with poison-pill amendments.

...Instead of engaging in a real debate about how to address the challenges we face, Republicans have turned to obstruction, no matter the issue, and then cry foul after the fact. They claim to want an open legislative process with more consultation and debate, but the truth is they simply don’t want to pass anything.

PFAW