Goodwin Liu

Beyond the D.C. Circuit: The GOP's Ten Most Outrageous Filibusters of Obama's Nominees

What finally brought Senate Democrats to a breaking point today – forcing them to change Senate rules to allow a simple majority to break a filibuster of most federal judicial nominees – was Senate Republicans’ blockade of President Obama’s three nominees to the Court of Appeals for the D.C. Circuit. Republicans admitted that they blocked these nominees not because of objections to the nominees themselves but because they didn’t want to allow President Obama to fill the seats at all .

This was an extreme abuse of the filibuster, especially coming from senators who had previously claimed that blocking judicial nominees for any reason was unconstitutional and un-American.

But the D.C. Circuit showdown was just the latest, most public, example of the Senate GOP’s abuse of the filibuster under President Obama. We look back at some ten of President Obama’s nominees who found themselves caught up in the Senate GOP’s shameless obstruction.

1. Goodwin Liu – Ninth Circuit

Goodwin Liu was a brilliant Berkeley law professor on the fast track to a Supreme Court short-list. So naturally Republicans tried to stop him in his tracks. Liu had plenty of support from conservative legal leaders – Bush administration attorney Richard Painter called him “exceptionally qualified, measured, and mainstream” – but that didn’t stop Republicans from trying to paint him as an extremist. Republicans filibustered Liu's nomination for more than a year before he withdrew his name from consideration in 2011, citing his family and the fact that the seat he had been nominated to was a designated “judicial emergency” and needed to be filled. But there was a happy ending for Liu, and for California: Later that year, he was confirmed to the California Supreme Court.

2. Dawn Johnsen – Office of Legal Counsel

Dawn Johnsen was President Obama’s first nominee to lead the Justice Department’s Office of Legal Counsel. Johnsen, a professor at Indiana University’s law school, had support from across the ideological spectrum, including from representatives of every presidential administration since Gerald Ford’s.

But Senate Republicans didn’t like that Johnsen had criticized the OLC’s handling of torture cases during the Bush administration and so accused her of being weak on terrorism. Johnsen was forced to withdraw her nomination after she was denied a Senate vote for more than a year.

3. John McConnell – District of Rhode Island

A public interest attorney, McConnell had led lawsuits against tobacco companies and lead paint manufacturers. So, when President Obama nominated him to Rhode Island’s district court, he quickly gained a very powerful enemy: the U.S. Chamber of Commerce. The behemoth lobbying group had never before campaigned against a trial court nominee, but made an exception for McConnell. The Senate was forced to hold a cloture vote to end a Republican filibuster of McConnell – only the third time in history that a cloture vote had been held on a district court nominee. The filibuster ultimately failed and McConnell was confirmed.

4. Mel Watt – Federal Housing Finance Agency

The Republican filibuster of North Carolina Rep. Mel Watt’s nomination to head the Federal Housing Finance Agency – which oversees Fannie Mae and Freddie Mac – went hand-in-hand with their blockade of the D.C. Circuit three, but it was special in its very own way. Watt became the first sitting member of Congress to be blocked from an administrative position since before the Civil War – at least, that anyone digging through congressional archives has been able to find.

Republicans said that Watt, who in his 20 years in Congress has served on the House Financial Services committee and been immersed in housing finance issues, was unqualified for the job. But the more likely explanation is that they wanted the agency’s Wall Street-friendly acting director to hold on to the post.

5. Caitlin Halligan – D.C. Circuit

Before there was Pattie Millett, Nina Pillard and Robert Wilkins , there was Caitlin Halligan. Republicans filibustered Halligan, President Obama’s first nominee to the D.C. Circuit, for two years, defeating two attempts to invoke cloture on her nomination. Halligan’s main opposition came from the National Rifle Association, which attacked her for a case she had argued on behalf of the state of New York when she was its solicitor general – in other words, a position she took as an attorney on behalf of a client.

The White House was forced to withdraw Halligan’s nomination, and her filibuster achieved its intended purpose: Obama became the first president since Woodrow Wilson not to have a single nominee confirmed to the D.C. Circuit in his first full term in office.

6. Robert Bacharach – Tenth Circuit

Senate Republicans under President Obama haven’t just thought up flimsy excuses to filibuster nominees for being too liberal; they’ve also filibustered plenty of nominees to whom they’ve had absolutely no objection.

One example of this is Oklahoma’s Robert Bacharach, whom President Obama nominated to the Tenth Circuit Court of Appeals with the resounding endorsements of both of Oklahoma’s very conservative senators. Making up a “rule” that presidents cannot be allowed to fill circuit court seats even with consensus nominees before an election, Senate Republicans blocked Bacharach's nomination – with the help of “present” votes from Coburn and Inhofe – forcing President Obama to renominate him. Finally, after making him wait nine months for a yes-or-no vote, the Senate confirmed Bacharach unanimously.

7. Richard Cordray – Consumer Financial Protection Bureau

Republicans’ filibuster of Richard Corday’s nomination was perhaps the perfect expression of their new method of governing in the age of Obama. As with many of the president’s judicial nominees, Senate Republicans couldn’t point out anything wrong with Cordray himself. But they really didn’t want anyone to fill the position to which he had been nominated, head of the newly-created Consumer Financial Protection Bureau.

President Obama skipped over now-Sen. Elizabeth Warren to nominate Cordray to head the consumer protection agency that was Warren’s brainchild, in what turned out to be a futile effort to ease the confirmation process. Instead, 45 Senate Republicans sent a letter to Obama informing him that although they had no problem with Cordray himself they would not allow a vote on his nomination until the president severely weakened the CFPB’s oversight power. In the meantime, without a permanent director, the CFPB was legally unable to exercise its full authority.

After denying CFPB a director for two years, Republicans finally allowed Cordray’s nomination to go through as part of a larger executive nominations deal this summer, which meant that the agency could finally start doing the full job it was meant to do.

8. Adalberto Jordan – Fourth Circuit

Adalberto Jordan of Florida is another nominee to whom the GOP had no stated objection yet chose to filibuster anyway. President Obama nominated Jordan to the Eleventh Circuit, where he would become the court’s first-ever Cuban-American judge, a big deal for the circuit that includes Florida. The Senate Judiciary Committee approved him without objection. Yet Republicans blocked a vote on his nomination for four months before finally allowing him to be confirmed in a 94-5 vote … but not before Sen. Rand Paul postponed his confirmation vote for an extra two days to make an unrelated point about foreign aid to Egypt .

Then there are the “silent filibusters” – ones where Republicans abuse the rules to stymie nominations but not in ways that necessarily lead to cloture petitions. These silent filibusters have slowed down numerous Obama nominees – leading to enormous wait times for Senate votes. Here are just two examples:

9. Louis Butler – Western District of Wisconsin

Louis Butler, the first African American to serve on the Wisconsin Supreme Court, lost a retention election in 2008 after big business groups poured money into a campaign opposing him.

President Obama nominated Butler four separate times to the Wisconsin District Court. He was approved by the Judiciary Committee. But Republicans kept blocking him, so his nomination was repeatedly returned without a vote. Butler’s nomination isn’t counted in tallies of filibusters because a cloture petition was never filed on his nomination. In 2009 and 2010, Sen. McConnell refused to consent to a floor vote. President Obama renominated Butler in 2011, but by that time Democratic Wisconsin senator Russ Feingold had been replaced by Republican Ron Johnson, who took advantage of the currently generous “blue slip” policy (see below) to prevent the Judiciary Committee from even voting on Butler. We count his nomination here because it is an example of the diverse ways Republicans have used to block votes on a nominees.

10. Edward Chen – Northern District of California

Another day, another science lesson from the GOP: In Edward Chen’s hearing before the Judiciary Committee, Sen. Jeff Sessions accused the ninth circuit nominee of being afflicted with the “ACLU chromosome.” This condition had caused Chen to work for several years at the ACLU, where he specialized in fighting language discrimination cases, before becoming the first Asian American to sit on the federal district court based in San Francisco.

Chen’s work to fight discrimination proved to be just too much for Senate Republicans, who made him wait two full years for a confirmation vote. Finally, a few days after Republicans failed to defeat the cloture vote on Rhode Island’s John McConnell, they agreed to allow a confirmation vote for Chen without forcing a cloture vote.

Blue Slip Bonus

A number of President Obama’s judicial nominees haven’t even gotten the chance to be filibustered. That’s because there’s a way Republicans can hold up nominees before they even get a committee hearing. Sen. Patrick Leahy, chairman of the Senate Judiciary Committee, won’t proceed with a hearing on a nominee until he receives “blue slips” from both of the nominee’s home-state senators signaling their go-ahead for the nomination process. In this way, a senator can hold up a home-state nominee before he or she even gets a public hearing.

Oklahoma’s Sen. Tom Coburn refused to return his blue slip on the nomination of Arvo Mikkanen to an Oklahoma district court,  not because he had anything bad to say about the nominee, but because he was upset that President Obama supposedly hadn’t consulted him before making the nomination. Mikkanen, who would have become the third-ever Native American on the federal bench, never received a hearing.

Nevada Sen. Dean Heller blocked the nomination of Elissa Cadish to the Nevada district court under pressure from the NRA because Cadish had once on a questionnaire correctly described the state of Second Amendment law before it was changed by the Supreme Court. Cadish never got a chance to defend herself in a public hearing, and withdrew her nomination after a year of delay.

Georgia’s Jill Pryor was first nominated to the Eleventh Circuit a year and a half ago, but still hasn’t gotten a hearing because her home-state senators would prefer that she be on a different court. Neither has raised questions about her qualificiations.

Why is the GOP keeping women and people of color off the bench?

To: Interested Parties
From: Marge Baker
Re: Why is the GOP keeping women and people of color off the bench?
Date: May 31, 2011

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