I can understand why Senate Republicans are angry about the recent change in the Senate’s filibuster rules. It means that their agenda of obstruction just got a lot harder. But all their righteous indignation is ringing hollow.
Yesterday, Sen. Chuck Grassley, the top Republican on the Judiciary Committee, issued a statement attacking the committee’s chairman, Sen. Patrick Leahy, for saying he would consider changing committee policies to make it harder for Republican senators to hold up nominations.
Democrats “are slowly but surely taking the world’s greatest deliberative body and moving towards a majoritarian body,” Grassley charged.
The reason Leahy has to even consider policy changes in committee is that GOP senators, in an attempt at retribution for the “nuclear option,” have repeatedly brought up an obscure rule that allows them to prevent the Judiciary Committee from meeting. They have also prevented the committee from meeting by simply not showing up, ensuring the lack of a quorum. Along with threats that Republican senators would refuse to return their “blue slips” signaling approval for hearings on home-state nominees, Sen. Leahy was faced with the prospect of not being able to process any nominees. Senate Republicans have literally not been allowing “the world’s greatest deliberative body” to deliberate on judicial nominations.
And the reason why Senate Democrats were driven to change the filibuster rules for presidential nominees in the first place was that the Republican minority was blocking nominees to positions they just didn’t want the president to be allowed to fill. In other words, they were using the Senate’s rules of obstruction in an attempt to nullify laws they did not like and reverse the results of the presidential election.
This didn’t promote “deliberation.” It shut the entire process down.
This sanctimonious whining from Grassley and his fellow obstructionist Republicans isn’t fooling anyone. Personally, I would have preferred not to have gotten to this place. My guess is that Senator Leahy would as well. But when you’re trying to govern a country and the minority party won’t let you complete even the most basic tasks of governance, there really is no choice. Comity has to be a two-way street.
The high and mighty act doesn’t work when you’re behaving like a child.
WASHINGTON – The Senate today voted to confirm Patricia Millett to the U.S. Court of Appeals for the District of Columbia Circuit. Millett is the first of President Obama’s three nominees to the court to receive a yes-or-no vote following the change in Senate filibuster rules in response to unprecedented Republican obstruction.
Marge Baker, executive vice president of People For the American Way, responded with the following statement:
“Finally, we are seeing progress in filling the three vacancies on the D.C. Circuit. There is no doubt that Patricia Millett and the other two nominees to this court -- Nina Pillard and Robert Wilkins -- are eminently qualified. The Republican opposition to these nominees has not been about their merits, but simply about keeping the president from filling these seats with any nominees. Millett will fill a seat that has been vacant since Chief Justice John Roberts was elevated to the Supreme Court in 2005. It’s about time this blockade was broken.
“We look forward to the Senate’s prompt confirmation of Pillard and Wilkins as well. Relentless Republican obstruction has for too long been crippling our federal courts. Confirming these nominees will be an important step toward getting the Senate, and our courts, working again.”
Last month, Senate Democrats were forced to change the rules of the filibuster after Republicans vowed to block all three of President Obama’s nominees to the D.C. Circuit Court of Appeals despite the fact that they had no problem with the nominees themselves.
But in the alternate universe of the Family Research Council’s Tony Perkins, when it comes to judicial nominations, “Senate Republicans have rarely displayed political courage stopping only a handful of nominees – nominees that ideologically would have been to the left of Hugo Chavez.”
Perkins said in his radio address today that the president’s nominations have in fact violated God’s “specific guidance on the selection of judges.”
The now majority leader pushed the nuclear option button effectively silencing the Senate minority and all but guaranteeing the president's nominees will be confirmed. Trust me; Senate Republicans have rarely displayed political courage, stopping only a handful of nominees -- nominees that ideologically would have been to the left of Hugo Chavez. The President is now free to pack the courts with ideologues that will both advance and protect his socialist policies. There is a reason that God gave specific guidance in the selection of judges. Few things will ruin a society quicker than unqualified, activist judges.
Looking through a list of Obama judicial nominees delayed or blocked by the GOP, it’s hard to find any who resemble the late Venezuelan president, but the FRC’s perception of these things tends to be skewed. After all, the group attacked both of the women in President Obama’s slate of nominees to the DC Circuit for being too “feminist,” one because she successfully fought for the Family and Medical Leave Act, and one because she supports having more than one woman on the Supreme Court.
The Family Research Council’s attempts to paint President Obama’s female nominees to the D.C. Circuit Court of Appeals as “radical feminists” aren’t going so well.
First, the FRC attacked Nina Pillard for quoting something the late Chief Justice Rehnquist wrote about the importance of the Family and Medical Leave Act.
Now, the FRC seems to think it’s found a winning argument against Patricia Millett, the other woman in the slate of three D.C. Circuit nominees: She thinks there should be women on the Supreme Court.
In his daily email on Friday, FRC’s Tony Perkins wrote:
As it stands right now, the D.C. Circuit is evenly divided between Democrat and Republican appointed judges -- but that's about to change. Using the nuclear option, the Senate moved forward with reconsidering Patricia Millett, the first of three previously blocked nominees the President will be employing to pack the court in his favor. Millett has shown an activist tendency in how she views the court, believing it's more important it look a certain way than judge a certain way.
When President Bush nominated Samuel Alito to replace Justice Sandra Day O'Connor, Millett bemoaned that O'Connor wasn't being replaced by another woman, as if gender impacts who's most qualified to apply the Constitution to the facts in a case or that our highest court should be seen as a representative body. She sees the redefinition of marriage turning on her own definition of fairness and not the law.
FRC seems to have picked up this line of attack from a talking points document put together by the right-wing Judicial Action Group, which claims that Millett's comment in a 2009 interview that “there was a lot of upset over the failure to put a woman on to replace Justice Sandra Day O’Connor” shows that she would have a poor "judicial temperament.”
Yes, this is actually the argument that FRC is using against an accomplished woman’s judicial nomination in 2013.
Here’s what Millett actually said, in a 2009 interview about whom President Obama might choose to replace Justice David Souter on the Supreme Court. At the time, there was just one woman on the court and Millett stressed that there were “many qualified women” who would make President Obama’s short-list, even if gender was not considered:
There was a lot of upset over the failure to put a woman on to replace Justice Sandra Day O’Connor and…it would be extraordinary to have no women on the Supreme Court in this day and age. But even to only have one is, I think, a sorry statement about the appointment process thus far, and where it’s gotten in the last eight years.
So, I think the pressure to have a Supreme Court that looks in many ways – and gender is just one way – that is reflective of the public it serves, would require that a woman gets serious consideration. And there’s no doubt that there are many, many qualified women who – entirely apart from their gender, if nobody even considers about their gender –would be short-listed for the Supreme Court in any event, so it makes that easy.
By the way, in case you were wondering about FRC’s claim that Millett “sees the redefinition of marriage turning on her own definition of fairness and not the law,” that also comes from JAG's talking points. JAG points to an interview Millett gave previewing the Supreme Court’s hearing of the DOMA case, in which she referred to the question before the Court – whether DOMA’s unequal treatment of same-sex and opposite-sex marriage’s violated the Fifth Amendment’s due process clause – as the “fundamental fairness question before the Court.” That is, she was accurately describing the issue the Court was asked to consider; she never implies that the issue is “turning on her own definition of fairness and not the law.”
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
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.
TO: Interested Parties
FR: Marge Baker, Executive Vice President, People For the American Way
DA: November 14, 2013
RE: Responding to False Claims on D.C. Circuit Court’s Workload
Senate Republicans have attempted to justify their mass filibuster of President Obama’s nominees to the U.S. Court of Appeals for the District of Columbia Circuit by claiming that the court’s workload does not justify filling its three existing vacancies.
The three main points that Senate Republicans and their allies use to back up this claim are all deeply flawed or downright false.
Here is the truth about the D.C. Circuit’s caseload.
Republican Claim #1 : The D.C. Circuit’s caseload has declined since the Senate confirmed President Bush’s nominees to 9th, 10th and 11th seats on the court.
The Facts: The nonpartisan experts within the federal judiciary who track and analyze federal court caseloads report that the D.C. Circuit’s workload has remained steady over the past decade.
Judge Timothy Tymkovich of the Tenth Circuit Court of Appeals, a George W. Bush nominee who heads the Judicial Conference's Standing Committee on Judicial Resources, which tracks the workload and personnel needs of federal courts, confirmed to a Senate subcommittee in September that the D.C. Circuit’s caseload “has been relatively steady the past ten years or so.”
As a result, Tymkovich added, his committee hasn’t seen ”any reason to reevaluate” the number of designated judgeships on the court.
The Administrative Office of the U.S. Courts' records underscore this observation.
Republican Claim #2 : The D.C. Circuit has fewer total appeals filed than any other circuit court in the country, and the raw number of appeals filed annually before the D.C. Circuit has declined.
The Facts: The Judicial Conference has stated clearly that comparisons involving the raw number of cases filed are meaningless , because of the uniquely complex nature of the D.C. Circuit’s caseload.
The D.C. Circuit’s caseload is fundamentally different from that of every other federal appeals court, chiefly because it handles a uniquely high volume of extremely complex, time-consuming administrative appeals.
In his testimony in September, Judge Tymkovich noted that the Judicial Conference uses a “different process” in evaluating the D.C. Circuit’s caseload than that of other circuits “because of the uniqueness of their caseload.”
The D.C. [Circuit] Court of Appeals has been excluded from the pure numerical standard. We employ a different process with that court, because of the uniqueness of their caseload. They have a heavy administrative practice. … Those cases have multiple parties, typically issues of first impression, big records, things that make them somewhat outliers [compared] to some of the cases we see in the other circuits. Some of those cases are exclusive jurisdiction in the D.C. court. So for that reason, we've excluded them from the same processes as the other circuits.
Raw filing numbers reveal little about the DC Circuit’s actual workload, because they indicate nothing about how complex those cases may be. The court could add or subtract 100 filings, but the impact on the court’s workload would be enormously different depending on how many of those are complicated administrative appeals. As Judge Tymkovich noted, although the court’s raw caseload numbers may go up and down, it’s workload has remained relatively steady over the past decade.
In fact, in the D.C. Circuit in the year ending June 30, the median time for cases from time of filing a notice of appeal until final disposition was 11.8 months, longer than every circuit but one. That is not a sign of an underworked court.
Republican Claim #3: D.C. Circuit judges report that if the Senate fills the court’s existing vacancies, “there wouldn’t be enough work to go around.”
The Facts: Republicans have taken an anonymous quote from an anonymous judge—and taken it wildly out of context.
Sen. Chuck Grassley claims that he has surveyed current D.C. Circuit judges and that an unspecified number have given him anonymous quotes supporting his blockade of President Obama’s nominees.
Putting aside the problem with basing public policy on anonymous quotes cherrypicked from an unspecified number of anonymous sources, the quote that Grassley trots out the most frequently doesn’t even say what he claims it says.
The real meaning of the quote Grassley uses is not at all what he suggests it is: The anonymous judge says the court does not need additional judgeships – that is, that Congress should not designate any new seats on the court, something that nobody is proposing to do. The quote that Grassley provided says nothing about filling the court’s existing vacant judgeships. Here is the full quote from the anonymous judge, according to Grassley:
I do not believe the current caseload of the D.C. Circuit or, for that matter, the anticipated caseload in the near future, merits additional judgeships at this time. . . . If any more judges were added now, there wouldn't be enough work to go around.
The astounding show of Republican recklessness that led to last month's government shutdown made one thing very clear. The new Republican Party -- the one ruled by the Tea Party -- isn't interested in making our government work. They want to break it.
Now, as if shutting down the government of the United States, furloughing hundreds of thousands of government employees, wasting billions of dollars and threatening to wreck America's economy wasn't enough, Republicans in Congress have set their sights on a new target: our justice system.
Yesterday, Senate Republicans took their campaign against our government to a whole new level when they blocked the nomination of Nina Pillard to the U.S. Court of Appeals for the District of Columbia Circuit, which is widely considered to be the nation's second-highest court behind the Supreme Court.
Pillard is one of President Obama's three nominees to fill vacancies on the D.C. Circuit, which is currently operating with nearly one-third of its active judgeships vacant. All three nominees have extraordinary professional qualifications. All three have support from across the ideological spectrum. Yet Senate Republicans are vowing to filibuster all three simply because they were nominated by President Obama.
One of the most basic functions of the U.S. Senate is to provide "advice and consent" to the president on his nominations to executive agencies and to the federal courts. For most of our country's history, the Senate has generally taken this constitutional order responsibly, using its power to block only nominees whom senators found unqualified or dangerously far out of the mainstream. That is, until now.
The same party that shut down the government in an attempt to nullify a duly-enacted law that it does not like is now trying to prevent a twice-elected president from filling vacancies on an important court -- a duty entrusted to him by the Constitution.
There's a reason Republican obstructionists have targeted the D.C. Circuit. The court has the last word on important federal laws and administrative rules on issues ranging from clean air regulations to workers' rights to cigarette labeling requirements to presidential recess appointments. Basically, just about any area that we regulate through our federal government is going to be affected by the D.C. Circuit. And it is currently dominated by conservative ideologues: nine of the 14 judges on the court (including "active" judges and senior judges who participate in panel decisions) were nominated by Republican presidents seeking to remake the courts in their ideological image.
Republicans want to keep it this way. President Obama has nominated five people to the court, yet Senate Republicans have allowed only one of these nominees to so much as receive a confirmation vote. By comparison, the Senate confirmed four of George W. Bush's nominees to the court and eight of Ronald Reagan's. In fact, the ninth, tenth, and eleventh seats that Republicans today demand remain vacant are ones that they ensured were filled when George W. Bush was president.
To give you an idea of just how conservative this court is as a result, just this month a George W. Bush nominee and a George H.W. Bush nominee ruled that employers who oppose birth control should be able to deny their employees access to affordable contraception through their insurance plans -- an absurd twisting of the true meaning of religious liberty. A few months ago, the court ruled that a law requiring employers to display a poster listing employees' legal rights violates the free speech rights of the employers. No, really!
Unable to win national elections, Republicans are trying to hold on to what power they still have -- and that includes control of the powerful D.C. Circuit. Just like they couldn't accept that the Affordable Care Act was the law of the land, the Tea Party won't admit that Americans chose President Obama to be the one making picks to the federal courts.
The Tea Party thinks that it has some sort of intellectual property claim on the U.S. Constitution. But sometimes I wonder if its leaders have even read it.
WASHINGTON – Senate Republicans today voted to deny Nina Pillard a yes-or-no vote on her nomination to the U.S. Court of Appeals for the District of Columbia Circuit. Pillard is one of three nominees to fill vacancies on the D.C. Circuit; Senate Republicans previously filibustered nominee Patricia Millett and they have indicated that they will also block the nomination of Robert Wilkins to the court. Republicans signaled they would filibuster all three nominees before President Obama had even announced their names.
Sens. Lisa Murkowski and Susan Collins were the only Republicans who voted to allow Pillard’s nomination to proceed to a yes-or-no vote. They were also the only two Republicans to support allowing a vote on Millett’s nomination.
Marge Baker, Executive Vice President of People For the American Way, issued the following statement:
“First, Republicans in Congress threw a temper tantrum about health care reform that shut down the government and threatened our economic stability. Now, they’re threatening to keep one-third of the seats on a critical court vacant just because they don’t like the president who is charged with nominating judges.
“This stunningly irresponsible approach to governing shortchanges the individuals and businesses seeking justice from our courts and makes a mockery of our judicial system.
“Nina Pillard is an extraordinarily qualified nominee who deserves a fair, yes-or-no vote from the Senate. Instead, her nomination is caught up in the GOP’s latest attempt to nullify existing laws by obstructing their implementation. Pillard, and American voters, deserve better.”
To: Interested Parties
From: Marge Baker, Executive Vice President, People For the American Way
Date: November 12, 2013
Re: The Nullification Strategy: How Senate Republicans Abuse the Filibuster to Undermine the Courts, Executive Agencies, and American Voters
Earlier this month, Sen. Patrick Leahy of Vermont, the Dean of the Senate and one of the most steadfast protectors of its traditions, announced that for the first time in his decades-long Senate career he was considering supporting a change to the Senate’s filibuster rules.
Leahy’s reluctant change of heart is a sign of the extent to which Senate Republicans have abused the rules of the Senate not only to oppose legislation and nominees with whom they disagree, but to change the rules of government, using obstruction to nullify laws and agencies that they lack the electoral mandate to overturn or eliminate through legitimate means.
Senate Republicans under President Obama have turned the Constitution's command of "advice and consent" into a prerogative to obstruct and nullify -- a violation of the Constitution's spirit that ignores the will of American voters and threatens to undermine the functioning of all three branches of government.
Using what Sen. Tim Kaine has called the "decapitation strategy," Senate Republicans routinely deny confirmation votes to qualified, widely respected nominees simply because the GOP wants to cripple the agency or court to which the individual was nominated.
This strategy will reach a new low today if Senate Republicans succeed in blocking an up-or-down vote on the nomination of Nina Pillard to the U.S. Court of Appeals for the District of Columbia Circuit, as they have indicated that they intend to do.
How the Nullification Strategy Works
In June, President Obama nominated three highly qualified individuals to fill the three vacancies on the D.C. Circuit Court. On Oct. 31, Republicans blocked a vote on the nomination of Patricia Millett. Today, they are expected to deny cloture on the nomination of Nina Pillard. And they have indicated that they will do the same to President Obama's third nominee to the court, Robert Wilkins.
Senate Republicans have made clear that they are blocking votes on these nominees simply because they do not want President Obama to be able to fill vacancies on this particular court. In fact, the Senate’s GOP leadership signaled their intention to stonewall all three nominees before they even knew who they would be – a clear sign that their obstruction has nothing to do with the nominees’ records or qualifications.
Similarly, Republicans blocked President Obama’s nominees to the National Labor Relations Board, preventing the agency from achieving a quorum; in so doing, they successfully sabotaged enforcement of the National Labor Relations Act without actually amending the law. They refused for a full two years to confirm a head to the Consumer Financial Protection Bureau, which prevented it from exercising some of its most important authorities; they admitted they had no problem with the nominee (Richard Cordray) but instead wanted to force Democrats to change the law and weaken the newly-created agency.
And of course, President Obama's nominee to head the Federal Housing Finance Agency, Rep. Mel Watt of North Carolina, is in the same position after Senate Republicans blocked a vote on his nomination, making him the first sitting member of Congress to be blocked from confirmation to an Administration position since before the Civil War.
Notably, a large number of the nominees who have faced politically-motivated blockades have been women and people of color. The blocked D.C. Circuit nominees are two women and an African-American man. Several months ago, Republicans blocked another woman, Caitlin Halligan, from a seat on the court, which will make Pillard the third woman this year that Republicans have blocked from the D.C. Circuit.
Why Republicans Have Targeted the D.C. Circuit
There is a reason that Senate Republicans have chosen the D.C. Circuit as an object of their obstruction: The court, which regularly reviews decisions by federal agencies on a broad range of issues important to the public at large, is currently dominated by Republican-nominated jurists who routinely undercut the ability of federal agencies to protect workers and consumers.
Although the court's eight active judges are divided evenly between Democratic and Republican nominees, five of the court’s six senior judges are Republican appointees. These senior judges sit on the three-judge panels that do most of the court’s work, and maintain a strong influence over the court. So when you draw a three-judge panel, there’s a high likelihood that it will have a conservative majority because Republican nominees outnumber Democratic ones 9-5, a nearly 2-1 ratio. In fact, 15 of the last 19 judges confirmed to the court were nominated by Republican presidents. That includes four George W. Bush nominees, three George H.W. Bush nominees, and eight Ronald Reagan nominees. By contrast, the Senate has confirmed just one of President Obama's nominees to the D.C. Circuit, Sri Srinivasan.
The conservative judges who currently dominate the D.C. Circuit have pushed an anti-regulatory, pro-corporate ideological agenda that clearly appeals to Senate Republicans. In just the past few years, Republican-nominated judges on the court have blocked EPA efforts to limit cross-state air pollution, defeated cigarette labeling requirements, and used severely flawed reasoning to declare that requiring employers to post a notice informing employees of their right to unionize violates the free speech rights of the employers. The D.C. Circuit has also aided Senate Republicans in their agenda of obstruction, voiding the president’s appointments of NRLB Members whom the president had been forced to recess-appoint after the GOP had refused to let the agency reach a quorum.
After he voted to block Millett’s nomination, Republican Sen. Mark Kirk of Illinois admitted that preserving the DC Circuit’s rightward slant was the reason for his party’s obstruction. "We're worried about that court being a significant bastion for administrative law cases on Obamacare,” he told the Huffington Post.
President Obama's nominees to fill the three vacancies on the D.C. Circuit are all impeccably qualified. Judge Wilkins is already a federal judge, serving on the US District Court for the District of Columbia, and has an impressive background in civil rights and financial law. Professor Pillard is a widely respected attorney who has personally argued and briefed key Supreme Court cases – including key women’s equality cases -- brought or defended by government lawyers from Republican administrations, and Republican-appointed justices often authored the majority opinions in her favor. She co-directs a universally admired nonpartisan institute that prepares attorneys to argue before the Supreme Court. Millett is one of the most respected appellate attorneys in the nation, and has argued dozens of cases before the Supreme Court.
Yet all three are facing filibusters simply because they were nominated by President Obama.
Stunningly, Senate Republicans have attempted to turn the tables on the president, accusing him of "court-packing" for attempting to fill congressionally-designated judicial vacancies with qualified nominees. This argument is laughably transparent: President Obama has nominated qualified individuals to seats that have been filled by all of his recent predecessors, even when the court's caseload was lower than it is today.
The Constitution mandates that the president name and the Senate fairly review nominees to federal judgeships created by Congress. President Obama has done his job by nominating three extraordinarily qualified nominees to the D.C. Circuit. But the Senate GOP is refusing to fulfill its duty of "advice and consent,” and is instead attempting to nullify the law and pretend the court has only eight seats.
This is the same strategy that House Republicans used when they shut down the federal government and threatened a default on the country’s debt in an attempt to bring down a law that had been enacted by Congress and upheld by the Supreme Court. Unable to achieve their preferred policies by winning elections, Republicans are attempting to nullify the results of those elections through extreme obstruction.
This abuse of the filibuster has now led even one of the Senate's most fervent institutionalists to consider eliminating the minority's ability to block nominees -- a fundamental change to an institution that less than ten years ago agreed to use the filibuster only under "extraordinary circumstances."
Senate Republicans must reconsider their nullification strategy, or risk harming not only the courts and executive agencies they are targeting, but the institution of the Senate itself.
For one of the newest entries in the Republican spin war on the D.C. Circuit, check out conservative writer Ramesh Ponnuru's column in Bloomberg yesterday. The title alone – Republicans Shouldn't Let Obama Pack the Courts – tells you something important: A column that calls the simple act of nominating people to fill existing judicial vacancies "packing the courts" should be taken with a huge grain of salt.
As just about everyone has pointed out, "court-packing" refers to the FDR scheme to add seats to the Supreme Court in order to achieve desired rulings. Filling existing vacancies is run-of-the-mill constitutional procedure. The closest we've seen to court-packing in a long time isn't President Obama's nominating three qualified nominees to the D.C. Circuit, but the Republican Party's scheme to strip multiple judgeships from that court in order to maintain its current far-right tilt.
Ponnuru also writes that:
Starting in 2003, the Democratic minority embarked on an unprecedented series of filibusters to stop President George W. Bush's appointments to appeals courts. Back then, Republicans said there was a crisis of judicial vacancies needing to be filled. Democrats replied that the courts, especially the D.C. Circuit, were underworked and that the Republicans were trying to pack the courts with like-minded judges. Now the sides are reversed, and so are the talking points
In fact, the situations are hardly similar. Democratic filibusters of a few Bush-43 nominees were all based on their records. Whether it was Janice Rogers Brown, Brett Kavanaugh, or Miguel Estrada, the conversations during committee hearings and floor debates were about their records, not whether President Bush had a right to nominate anyone at all to the court. In contrast, Republicans signaled their intent to block President Obama's three nominees even before knowing who they would be.
Ponnuru writes that the D.C. Circuit has less work than it did when Bush's nominees were confirmed. In fact, Tenth Circuit Judge Timothy Tymkovich – the conservative, Bush-43-nominated jurist who is the chair of the Judicial Conference's Committee on Judicial Resources – testified before the Senate Judiciary Committee just a few weeks ago that this simply is not true. But even if you used the definition of caseload that Ponnuru's statement is based on (raw case filings without regard to the complexity of the cases), it still serves only to highlight GOP hypocrisy on the issue: As we have pointed out before, President Bush and Senate Republicans worked to fill these same seats in 2003 when the number of case filings was less than it is today.
Ponnuru also mischaracterizes an anonymous letter Senator Grassley claims to have received from a D.C. Circuit judge, suggesting that the letter somehow supports the notion that the current judgeships should not be filled.
First, legislators shouldn't be basing their decisions on edited comments from anonymous sources that are not even entered into the formal record or made available for public inspection and questions from senators. Secondly, it's clear from Grassley's rendition of the letter that it was talking about creating new judgeships, not filling existing vacancies. Here's what Sen. Grassley has said the anonymous judge wrote:
I do not believe the current caseload of the D.C. Circuit or, for that matter, the anticipated caseload in the near future, merits additional judgeships at this time. . . . If any more judges were added now, there wouldn't be enough work to go around. [emphasis added]
Since no one is talking about adding new judgeships to the D.C. Circuit, the quote has nothing to do with the situation before us.
Ponnuru also says that the court is actually balanced between Democratic and Republican appointees. While that is true for active judges, five of the court's six senior judges are Republican appointees. These senior judges sit on the three-judge panels that do most of the court's work, and they maintain a strong influence over the court. So when you draw a three-judge panel, there is a high likelihood that it will have a conservative majority, because Republican nominees outnumber Democratic ones 9-5, a nearly 2-1 ratio. Senate Republicans like those numbers and would like to keep them that way.
But there is a bigger picture: Even if everything that Ponnuru said was accurate, Congress has by law has established the D.C. Circuit as a court with eleven active judgeships. Senate Republicans don't like that, so they are using obstruction to make it de facto an eight-judge court. There are proper, constitutionally mandated ways of changing the law: Get Congress to pass a bill and the president to sign it. Nullifying and rewriting the current law through obstruction is not what the Founders had in mind, and it would make a lousy Schoolhouse Rock bit.
People For the American Way Director of Communications Drew Courtney appeared on Disrupt with Karen Finney this weekend to discuss Senate Republicans’ reckless obstruction of President Obama’s nominees to the important Court of Appeals for the District of Columbia Circuit.
Right-wing groups determined to paint D.C. Circuit Court of Appeals nominee Nina Pillard as a “scary,” “radical” and “militant” feminist have taken to using an unexpected weapon: a landmark women’s rights decision written by the late conservative Supreme Court Chief Justice William Rehnquist.
Ten years ago, the state of Nevada had challenged the Family and Medical Leave Act after a male state employee had tried to take his FMLA-sanctioned leave to care for his ailing wife. Pillard joined with the Bush administration to bring the case, Nevada Department of Human Resources v. Hibbs, to the Supreme Court and successfully argued that the FMLA should be upheld.
In his majority opinion in the case, the Chief Justice Rehnquist wrote that Congress had been justified in passing the FMLA to combat what he called the “significant” problem of women facing employment discrimination because employers assumed they would have to take more time off than men to care for their families. He wrote:
Stereotypes about women’s domestic roles are reinforced by parallel stereotypes presuming a lack of domestic responsibilities for men. Because employers continued to regard the family as the woman’s domain, they often denied men similar accommodations or discouraged them from taking leave. These mutually reinforcing stereotypes created a self-fulfilling cycle of discrimination that forced women to continue to assume the role of primary family caregiver, and fostered employers’ stereotypical views about women’s commitment to work and their value as employees. Those perceptions, in turn, Congress reasoned, lead to subtle discrimination that may be difficult to detect on a case-by-case basis.
Providing men with family leave, the Hibbs court reasoned, would help to change underlying gendered patterns of family care and thereby help to counteract “a self-fulfilling cycle of discrimination” – a cycle that “fostered employers’ stereotypical views about women’s [lack of] commitment to work and their [lesser] value as employees,” as well as “parallel stereotypes” of men’s overriding workplace commitment that routinely obstruct men’s equal access to family benefits that could encourage them to spend more time parenting. The radical implication of Hibbs is that we cannot end sex discrimination outside the home without changing our beliefs about women’s and men’s differential attachments to family care within it, and we cannot change those beliefs without actually shifting the allocation of care work within the family.
Fast forward to today, when Pillard is one of President Obama’s three nominees to fill vacancies on the influential D.C. Circuit. Right-wing groups, upset by Pillard’s success defending women’s rights in the courts -- she also wrote the legal briefs that convinced the Supreme Court to open the Virginia Military Institute to women – are now looking for any reason to keep her off the court, and have seized on Hibbs.
This summer, the Family Research Council sent out an email to its members attacking Pillard for saying that assumptions about women’s roles in the home present “a self-fulfilling cycle of discrimination” – words that were, in fact, written by Chief Justice Rehnquist. The FRC later corrected itself, but the quote was so abhorrent to the far right that it stuck.
On his Crosstalk program yesterday, VCY America host Jim Schneider repeatedly cited the quote in an interview with the National Abstinence Education Association’s Valerie Huber, claiming that Pillard had argued “that in celebrating motherhood, society is creating a ‘self-fulfilling cycle of discrimination.’” Huber, in turn, took that as evidence that Pillard is indeed a “radical feminist.” The quote has also turned up in various conservative outlets.
We have no doubt that the FRC’s original misreading and then VCY’s face-value reading of FRC’s old email were honest mistakes. But this is a revealing game of telephone. The fact that a straight-forward statement about sex discrimination written by one of the most conservative justices in recent history engenders such anger on the Right says much more about those attacking Pillard than it does about their target.