On Monday, Senate Majority Leader Harry Reid filed cloture petitions to end GOP filibusters of 17 district court nominees, an extraordinary move brought on by unprecedented Republican obstruction. The Senate GOP started immediately to try to spin the story to try to cover for the gridlock they had created. Here are the five main Republican talking points on the judicial obstruction showdown and the facts that rebut them:
GOP Talking Point #1: Senate Democrats have invented this conflict to make Republicans look bad. This is a little skirmish about timing that’s been blown out of proportion.
Sen. McConnell: “Rather than try to manufacture gridlock and create the illusion of conflict where none exists, why don’t we demonstrate we can kind of get something done together?”
Sen. Alexander: "This is a little disagreement that we have here between the Majority leader and the Republican leader on the scheduling of votes on district judges. It's not a high constitutional matter. It's not even a high principle. It's not even a big disagreement.”
- Senate Democrats aren’t “manufacturing gridlock” – they’re bringing it into the daylight. Senate Republicans have created unprecedented gridlock over the last three years. Democrats are now calling them out on it.
- President Obama’s judicial nominees have been met with such consistent obstruction that they now wait an average of four times longer than President Bush’s nominees just to reach a Senate vote. This unrelenting gridlock has helped create a historic vacancy crisis in the federal courts.
- This is no minor matter: this is about whether 10% of our federal courtrooms remain empty. This is about Americans having access to fair and functioning courts.
- If Senate Republicans wanted to move on from this issue, they could easily agree to schedule a vote today and confirm all 17 nominees. The Senate did just that in 2002, when it confirmed 17 of Bush’s district court nominees -- plus a Circuit Court nomination – all by a voice vote in just a few minutes.
- What’s really going on here is that Republicans don’t want these nominees to be put to a vote. No district court nominee has ever been successfully blocked by a filibuster – if they deny cloture on these nominees, the GOP will be setting a new and very dangerous standard.
GOP Talking Point #2: The GOP’s obstruction is a direct response to President Obama’s recess appointments.
Sen. Lee: "After the president made four unconstitutional appointments, we could no longer sustain the same level of cooperation.”
- Senate Republicans have been obstructing President Obama’s judicial nominees from day one of his presidency. Even before the recess appointments, Obama nominees were stalled an average of four times as long as Bush’s.
- At the end of last year, even Sen. Lee was upset that Obama’s nominees weren’t getting votes. In December, he said he was “frustrated” that Utah District Court nominee David Nuffer had been stalled for two months on the Senate floor. “There is absolutely no reason why we shouldn’t have confirmed him before we got out.”
- In August 2010, American Bar Association warned that the judicial vacancy crisis was leading to “justice denied.” In December 2010, Chief Justice John Roberts urged the Senate to solve “the persistent problem of judicial vacancies.” In April 2011, the Federal Bar Association warned that the vacancy crisis was harming business and costing taxpayers. For three years, Editorials Boards and commentators from across the nation have called for an end to obstruction. This is a persistent problem, not a new creation.
GOP Talking Point #3: Some of the filibustered nominees haven’t been on the calendar all that long, what’s the hurry?
Sen. Alexander: “We have 17 district court judgeships that have been recommended by the Judiciary committee. They could be brought up by the majority leader. He has the right to do that but of those 17, six of them - six of them - have been here for less than 30 days. They just got here.”
- Moving district court nominees in under a month used to be the norm, not the exception. At this point in Bush’s presidency, the average district court nominee waited just 22 days after committee approval for a vote from the full Senate. Under President Obama, the average wait has been 93 days.
- During Bush’s first term, 57 district court nominees were confirmed within a week of being approved by the Judiciary Committee. During Obama’s first term, only 5 have been.
- On September 26, 2008, the Senate confirmed 10 district court judges by voice vote. All 10 had been reported just one day earlier. In fact, 5 of these had just had their hearings three days earlier. Now, less than four years later and with a Democratic president in office, Republicans are saying this sort of quick processing of nominees is impossible.
GOP Talking Point #4: Senate Republicans are floating plans to vote “present” on the 17 cloture petitions, thus continuing to stall the nominees while not being tagged with a “no” vote.
Sen. Cornyn: “Sen. John Cornyn (R-Texas) told POLITICO he thinks Republicans will vote ‘no’ or ‘present’ on the cloture votes on judges and won't allow Democrats to ‘jam’ them.”
- Voting “present” on cloture is exactly the same thing as voting “no.” Anyone who is at all familiar with Senate rules, where it takes 60 “yes” votes to end a filibuster understands this basic point.
- If Republicans want to continue to obstruct these nominees, they should be willing to be clear about what they are doing, not opt for some ruse. The American people are smart enough to understand that a “present vote” indicates that Republicans are playing games rather than playing their Constitutionally mandated role to advise and consent.
- No district court nominee has ever been blocked by a filibuster. Whether Republicans vote “no” or “present,” if they succeed in denying cloture to any of these 17 nominees, they will be creating a dangerous precedent.
GOP Talking Point #5: The Senate has more important issues to focus on.
Sen. McConnell: “It could be that is precisely what my friend the Majority leader has in mind, to try to make the Senate look like it's embroiled in controversy where no controversy exists. So my suggestion is, why don't we do first things first.”
- Americans rely on having access to a fair and functioning judiciary to assert their rights in cases of civil rights violations, employment discrimination, dangerously defective consumer goods, predatory lending practices, immigrant rights, consumer fraud, environmental destruction, and other areas. Because of Republican obstruction, the courts we rely on are in jeopardy – and the American people are paying the price.
- During the Obama presidency “judicial emergencies” declared by the U.S. Courts have soared from 20 to 35 and the vacancy rate has been kept at an all-time high. 160 million Americans live in districts or circuits with at least one judicial vacancy.
- Senate Republicans could easily move on to other priorities – by simply agreeing to hold up-or-down votes on the 17 nominees who they are currently filibustering.
Press Contact: Miranda Blue, (202) 497-4999, firstname.lastname@example.org