To: Interested Parties
From: Marge Baker, Executive Vice President, People For the American Way
Date: November 18, 2013
Re: GOP Exceeds Expectations…on Executive Branch Obstruction
Earlier this year, People For the American Way released an analysis showing the unprecedented level of obstruction faced by President Obama’s nominees to the executive branch. At that time, 16 of the President’s nominees to the executive branch of government had faced filibusters from Republican senators and were the subject of cloture votes after Republicans refused to allow an up-or-down vote on their nominations. That number was on pace to reach 28 nominees by the end of President Obama’s second term.
Since then, things have only gotten worse.
In the last four months, eleven additional executive branch nominees have faced filibusters from Republicans intent on blocking their nominations. These include Fred P. Hochberg (Export-Import Bank President), Regina McCarthy (Environmental Protection Agency Administrator), Thomas Perez (Secretary of Labor), Kent Yoshiho Hirozawa (National Labor Relations Board member), Nancy Jean Schiffer (National Labor Relations Board member), Mark Gaston Pearce (National Labor Relations Board Chairman), Byron Todd Jones (Director of the Bureau of Alcohol, Tobacco, Firearms and Explosives), Richard F. Griffin (National Labor Relations Board General Counsel), Alan F. Estevez (Assistant Secretary of Defense Logistics and Materiel Readiness), Katherine Archuleta (Director of the Office of Personnel Management), and Congressman Melvin L. Watt (Director of the Federal Housing Finance Agency). Notably, the filibuster of Congressman Watt represented the first filibuster of a sitting member of Congress for an executive branch appointment since before the Civil War.
Importantly, the rate of obstruction has increased considerably, and Republicans are now on pace to filibuster a full 45 nominees before the end of the Obama administration in January 2017.
Not only do these filibusters hinder the work of a wide range of agencies and departments, they are also part of a larger Republican agenda to nullify existing laws through obstruction. Many of President Obama’s executive branch nominees have faced filibusters not because Senate Republicans objected to their personal qualifications, but because they do not wish to allow the agencies and departments to which they have been nominated to do their work.
This nullification strategy is part of the same wrong-headed philosophy that forced the government to shut down last month, and which is currently preventing three impressively qualified nominees for the D.C. Circuit Court of Appeals from receiving confirmation votes.
The ultimate victims of Republican obstruction aren’t the Senate’s Democratic leadership or even President Obama, but the individual Americans who depend on a government that operates effectively and addresses the needs of real people.
Correction: This post was updated to include the filibusters of Fred Hochberg, Regina McCarthy, and Thomas Perez.
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.
President Obama has nominated three extraordinarily well qualified individuals to serve on the influential U.S. Court of Appeals for the D.C. Circuit. But the Republican Party's intransigence and opposition have turned this into one of the most important obstruction fights we've seen in the last five years.
On Tuesday, September 24, People For the American Way hosted a telebriefing with U.S. Senator Richard Blumenthal (D-CT) to discuss the matter.
Senator Blumenthal, who sits on the Judiciary Committee, chaired last week’s hearings on the nomination of Nina Pillard to a seat on the D.C. Circuit. He gave a first-hand account of how very qualified she is to serve on this all important court. He explained how important the D.C. Circuit is in the federal judicial system, why it’s important to fill the current vacancies on the court, and how Pillard exemplifies the brilliance and integrity that is so important in filling these vacancies.
Listen to the call for yourself here:
We had a lot of questions from callers about the need to overcome the GOP’s obstruction on these nominees and talked about how important it is for constituents to let their Senators know that it’s time for the obstruction to end.
Thanks to all the PFAW members who the time to join our call. We’ll continue to fight to make sure President Obama's nominees get the simple yes or no votes they deserve.
To: Editorial boards and journalists
From: Marge Baker, Executive Vice President, People For the American Way
Date: September 11, 2013
Re: On D.C. Circuit, Senate GOP Faces Choice Between Governance and Obstruction
The Senate Judiciary Committee will hold a hearing today on the nomination of Judge Robert L. Wilkins, one of President Obama’s three nominees to the influential Court of Appeals for the District of Columbia Circuit. Wilkins, like his fellow nominees Cornelia “Nina” Pillard and Patricia Millett, is indisputably qualified. In fact, the Senate unanimously confirmed him in 2010 to his current position on the U.S. District Court for the District of Columbia. But Wilkins’ nomination, like those of Pillard and Millett, risks being caught up in political gridlock that has nothing to do with his qualifications.
The Senate Judiciary Committee approved Millett’s nomination last month along party lines, with Republican senators making clear that their objections were all about politics and not about the nominee’s merits. The committee will vote on Pillard’s nomination next week.
We urge the Senate Judiciary Committee to fairly consider Wilkins and the Senate GOP to allow yes-or-no votes on all three nominees.
Another highly qualified, principled nominee
As President Obama made clear in his Rose Garden speech announcing the nominations of Wilkins, Pillard and Millett, all three are highly qualified, principled individuals who will be an enormous asset to the D.C. Circuit, frequently referred to as the second most influential court in the nation. A graduate of Harvard Law School, Judge Wilkins served for over a decade at the Public Defender Service for the District of Columbia, where he was recognized by the Legal Times as the office’s “premier advocate.” In 2002, Wilkins joined the respected law firm Venable LLP, where he oversaw complex financial industry cases and was recognized as one of Washington’s top lawyers by Washingtonian Magazine and the Legal Times.
In 1993, as a private citizen, Wilkins led one of the nation’s most influential legal battles against racial profiling. After his car was stopped and searched for drugs by Maryland state police while he was driving home from his grandfather’s funeral, Wilkins filed a lawsuit against the state. The suit revealed that the state police had directed its troopers to target African American motorists for highway drug searches. The case, Wilkins, et al. v. State of Maryland, influenced the entire country: 46 states now collect data to detect and prevent racial profiling of drivers.
Wilkins has been a leader in the effort to establish and create the National Museum of African American History and Culture. In 2000, he left his job to work full-time on the establishment of the museum, working with a bipartisan group of lawmakers to establish a commission to plan the museum. The Senate later appointed Wilkins to chair the commission’s site and building committee. The museum is set to open in 2015.
In 2010, the U.S. Senate unanimously confirmed Wilkins to the U.S. District Court for the District of Columbia. The American Bar Association has rated him Unanimously Well Qualified for the D.C. Circuit, its highest rating for judicial nominees.
Senate Republicans’ persistent obstruction
Senate Republicans have threatened to filibuster Wilkins’ nomination, along with those of fellow nominees Cornelia “Nina” Pillard and Patricia Millett, simply because they do not want President Obama to fill vacancies on the D.C. Circuit.
This is the most extreme manifestation yet of the Senate GOP’s campaign of delays and inaction against President Obama’s judicial nominees. Because of Republican slow-walking, President Obama’s confirmed judicial nominees have been forced to wait nearly three times as long for a yes-or-no vote from the Senate than were President George W. Bush’s nominees by this point in his presidency. During George W. Bush’s entire eight years in office, the Senate minority filibustered 18 judicial nominations; in the first five years of Obama’s presidency, there have already been 31 judicial filibusters. Many of these filibusters have had nothing to do with the nominees themselves: Nearly half of the Obama circuit court nominees who Republicans have filibustered are people they ultimately supported overwhelmingly.
The result is that more than ten percent of seats on lower federal courts are now or will soon be vacant. More than one third of current vacancies are in courts so over-extended that the Judicial Conference of the United States has declared them “judicial emergencies.”
This pattern holds true at the D.C. Circuit, where three of eleven active judgeships are vacant. The Senate has confirmed just one Obama nominee to the D.C. Circuit, in contrast to the four George W. Bush nominees, three Clinton nominees, three George H.W. Bush nominees and eight Reagan nominees.
This persistent obstruction has been detrimental to the federal court system, causing delays for individuals and businesses seeking their day in court.
But it has also delayed President Obama’s efforts to put qualified nominees with a diversity of backgrounds on the federal bench. Forty-one percent of President Obama confirmed nominees have been women, compared with just 22 percent of President Bush’s nominees. Likewise, 38 percent of President Obama’s nominees have been people of color, in contrast to just 18 percent of President Bush’s nominees.
The nominations of Wilkins, who is African American, and Millett and Pillard, who are both women, to the D.C. Circuit represent President Obama’s commitment to picking highly qualified, diverse nominees to the nation’s courts. Senate Republicans should give these nominees the respect of reviewing them on their merits, rather than using them as pawns in destructive political infighting.