Since Senate Judiciary Chair Chuck Grassley is making sure that the committee he runs completely ignores Merrick Garland’s Supreme Court nomination, one might think that he’s using the extra time to at least process the president’s many circuit and district nominees. Not!
While Grassley and Senate Majority Leader Mitch McConnell’s brazen and unprecedented refusal to consider Garland has drawn a great deal of attention, PFAW has long reported on how this obstruction, far from being unique to Garland, is an extension of how the Senate GOP has treated President Obama’s lower court nominees for most of his time in office.
Today, Sen. Elizabeth Warren has made a tremendous contribution to the national conversation, issuing a new report entitled Going to Extremes: The Supreme Court and Senate Republicans’ Unprecedented Record of Obstruction of President Obama’s Nominees." The senator covers how Republicans have worked hard not to thoughtfully vet both judicial and executive branch nominations, but to slow down their confirmations as much as possible, or block their confirmations altogether.
She uses Senate Republicans’ own statements about the Garland nomination to show the disingenuousness of the rationales for obstruction they present to the public and demonstrates that their obstruction is unprecedented. And with a prosecutor’s efficiency, she makes the powerful case that the GOP has consistently and deliberately slow-walked or blocked altogether the president’s circuit and district court nominees, as well as his executive branch nominees.
Supported with facts and figures from the nonpartisan Congressional Research Service, Sen. Warren’s new report is a devastating indictment of a political party that has misused the confirmation process to prevent the executive and judicial branches from functioning effectively to protect consumers and workers, hold large corporations accountable, and protect equality.
As she notes in the report’s conclusion:
From the moment the Supreme Court vacancy arose, Senate Republicans linked arms in an attempt to deny President Obama the full authority of his office in the final year of his presidency. They cynically claimed they wish to “let the people decide,” but the people have already decided. Twice. They elected President Obama in 2008 by nine million votes and re-elected him in 2012 by five million votes. Republicans’ statements over many weeks have made clear that their true interest is what it has been for the past eight years: to block and hinder President Obama at every turn, dragging out or blocking outright the confirmation of nominees across the government and the courts.
As the report shows, the GOP has a shameful record of obstruction going back to President Obama’s first days in office. The unprecedented blockade against Garland is only the apex of a pattern that has gone on for years.
During the administration of George W. Bush, the Federalist Society helped the administration fill the federal courts with judges who embrace a right-wing legal ideology. Back then, group leaders criticized Democratic senators for filibustering some nominees. But at the Conservative Political Action Conference (CPAC) last week, a senior Federalist Society staffer praised Republican Senators who have refused to even give a hearing to a nominee for the Supreme Court seat left vacant by the death of Justice Antonin Scalia — and suggested that if a Democrat is elected president this year, the Senate could continue its obstructionist blockade through the next administration.
The Federalist Society has often portrayed itself as a polite debating society and downplayed the important and destructive role it has played promoting far-right legal theories as well as judges and political officials who can turn that ideology into public policy. The Federalist Society’s influence reached a pinnacle with the nomination of Supreme Court Justice Samuel Alito, an ideological warrior with deep roots in the right-wing legal movement. Alito, whose nomination was shepherded through the Senate by the Federalist Society’s Leonard Leo, has returned the favor as a justice, helping raise money for the Federalist Society and other right-wing groups, and becoming the single most pro-corporate justice on the most pro-business Supreme Court since the New Deal.
Dean Reuter, vice president of the Federalist Society, led a brief workshop at CPAC with John Yoo, a law professor and author of the infamous “torture memos” while working at the Justice Department during the George W. Bush administration. Reuter and Yoo are co-editors of “Liberty’s Nemesis: The Unchecked Expansion of the State,” published last month. The book focuses on the growth of the administrative state, but Reuter began by addressing the dispute between the White House and Senate Republican leaders who have declared that they will refuse to even consider a Supreme Court nominee this year.
Reuter said it was the Senate’s duty to act as a check on executive power.
But I’m happy to report that the law and the Constitution are on the Senate’s side here. The president surely does have a duty to nominate someone, but the Senate has a co-equal duty as a co-equal branch of government to, in this case, operate as a check. It doesn’t have any responsibility or any duty to host one-on-one meetings with the nominee, or hold a hearing, or hold a committee vote or a floor vote. There’s no timetable. It’s not as if the president sends somebody over and says, we need this back next month, or next Wednesday, or whatever.
So the Senate is perfectly well within its prerogative, even the proper understanding of checks and balances, it can easily be said that the role of the Senate is to check the president’s power in this instance, the appointment power, especially I think when you’re dealing with a third branch of government and a lifetime appointment.
It’s not the president appointing the secretary of the Department of Commerce, it’s the president making an appointment to an independent, third branch of government and the Senate’s entitled to do its full due, which in this case may be not to act.
When asked if the Constitution would support the Senate’s refusal to act indefinitely if a Democrat were elected president, he said:
There’s no time limit in the Constitution. And there’s nothing magical about there being nine justices. The country started out with six justices, we’ve had as many as 10 at some point in time. And as recently as 2010, when Justice Elena Kagan came on the court, she had been solicitor general so she recused herself in over a third of the cases…I don’t see a sense of urgency.
The Federalist Society would undoubtedly experience a different sense of urgency if a Republican were elected president and given the opportunity to put more right-wing activists like Samuel Alito on the court.