Fair and Just Courts

Roberts Court Leaves Workers and Employers Hanging

A case dismissal leaves intact a damaging lower court opinion whose questionable validity prompted the dismissal.
PFAW Foundation

PFAW Applauds Senate Progress on DC Circuit Confirmations

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.”


###

McConnell to Participate in Recess Appointments Case

The Roberts Court will let the GOP leader participate in oral arguments in a constitutional case that his party's obstruction engendered.
PFAW

Tony Perkins Claims Obama Judicial Picks Are 'To the Left of Hugo Chavez'

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.
 

Sekulow Admits He Has No Problem With The DC Circuit Nominees He Opposes

On the 700 Club today, Pat Robertson got to talking with the American Center for Law and Justice’s Jay Sekulow about President Obama’s three nominees to the D.C. Circuit Court. Although Robertson was concerned that there might be a “feminist”among them, Sekulow said he had no problem with the nominees themselves and instead repeated the GOP’s flimsy argument that President Obama’s nominating people to judicial vacancies constitutes “court-packing.”

Sekulow went out of his way to sing the praises of one of the three nominees, Patricia Millett, whom he called “a very bright lawyer,” but said the nominees’ qualifications are “not the question. The question is are these judges needed?”

Sekulow – like many of his allies in the Senate GOP – might want to check his own record before claiming that President Obama’s filling the D.C. Circuit’s vacant 9th, 10th, and 11th seats amounts to “court packing.” Under President Bush, Sekulow advocated for nominees to the very same seats: He boasted about “working aggressively” to confirm Janice Rogers Brown to the court’s 10th seat in 2005, supported Thomas Griffith’s nomination to the court’s 11th seat the same year, and demanded a vote on Brett Kavanaugh to the 10th seat in 2006.

Despite Sekulow’s vague claim that “There’s a real question as to the workload of these courts that are at an all-time low in the last ten or fifteen years,” the George W. Bush nominee who now runs the official body that recommends adding and subtracting federal judgeships has said the D.C. Circuit’s workload has remained “relatively steady” over that time.

Sekulow may also remember that he lobbied in 2005 to change the Senate’s filibuster rules in response to Senate Democrats’ blocking of a handful of extreme Bush nominees, saying that judicial nominees are “entitled...under the Constitution” to an up-or-down Senate vote.

Although he’s happy to rail against President Obama’s temerity in nominating qualified, unobjectionable judges to judicial vacancies, Sekulow signaled to Robertson that he would expect a Republican president to do the same, but to fill the vacancies with out-of-the-mainstream judges.

“What’s good for the goose is good for the gander,” he said of the Senate’s recent rules change. “And it means what’s going to happen here is when the Republicans are back in control -- which will happen one day, in the Senate, in the White House – look out on who’s going to be appointed. There should be no holds barred on these judicial appointments.”

 

FRC Attacks Judicial Nominee For Saying There Should Be Women 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.”

Senators Use PFAW Chart to Show Unprecedented Nature of GOP Obstruction

In their press conference following yesterday’s vote to change the Senate rules on filibusters, Democratic senators used a chart provided by PFAW to outline the extremity and unprecedented nature of the GOP’s obstruction of President Obama’s nominees.

chart-schumer

chart-Reid

Photos by J. Scott Applewhite/Associated Press via The Washington Post

PFAW

PFAW: After Rules Change, It's Time To Get The Senate Working Again

Republicans’ abuse of Senate rules during this administration has been astounding. It’s now time for the Senate to get on with the business of governing after spending far too long bogged down with reckless GOP obstruction.

The Senate GOP's Unprecedented Obstruction In Five Charts

Senate Democrats are looking increasingly serious about the possibility of changing the Senate rules to permit a 51-vote majority to end debate on nominees to the executive branch and lower federal courts – the so-called “nuclear option.” The move would come after Senate Republicans abused the filibuster to block votes on all three of President Obama’s nominees to fill vacancies on the U.S. Court of Appeals for the District of Columbia Circuit.

The D.C. Circuit nominees are among 17 federal judicial nominees currently waiting for Senate floor votes. Thirteen of these have been waiting for three weeks or longer; two have been waiting for over 100 days.

And the blanket filibuster of D.C. Circuit nominees is just the latest in the GOP’s onslaught of unprecedented obstruction under President Obama. Here are four charts showing just how far Republican obstruction has gone in the Obama administration.

Failed to confirm one-quarter of President Obama’s judicial nominees.

At this point in President Bush’s term, the Senate had confirmed 91 percent of his nominees to the lower federal courts. As of today, the Senate has confirmed just 76 percent of President Obama’s nominees. Those left out include the 17 nominees still waiting patiently for yes-or-no confirmation votes, as well as many nominees who have been forced to withdraw their nominations after meeting a wall of GOP obstruction. Unquestionably qualified nominees forced to withdraw their names include D.C. Circuit nominee Caitlin Halligan, Ninth Circuit nominee Goodwin Liu and Nevada District Court nominee Elissa Cadish.

The unconfirmed 26 percent also includes nominees who have met with Republican obstruction before even getting a hearing from the Senate Judiciary Committee. Because committee chairman Patrick Leahy won’t schedule a hearing on a nominee until both of that nominee’s home-state senators return “blue slips” signaling their approval for starting the process, Republicans can hold up the confirmation process before it even starts simply by refusing to return a “blue slip.” One example is Georgia senators Saxby Chambliss and Johnny Isakson’s year-and-a-half-long (and counting) blockade of Eleventh Circuit nominee Jill Pryor, whom they previously found qualified for a district court judgeship.

Stonewalled the D.C. Circuit.

When President Obama nominated three qualified people to the three vacancies on the U.S. Court of Appeals for the D.C. Circuit, Senate Republicans put up a coordinated front of righteous indignation, accusing the president of trying to “pack” the court to “rubber-stamp” his agenda. This act was somewhat hard to believe coming from a party that less than a decade ago successfully pushed to confirm George W. Bush’s nominees to the very same seats. The cries of “court-packing” were also a little bit undermined by the fact that Senate Republicans had allowed just one of President Obama’s nominees to be confirmed to the court, in contrast to four of Bush’s nominees and eight of Reagan’s.

It all made one believe that maybe the goal was to keep the influential court dominated by conservative Republican appointees.

Forced Obama's judicial nominees to wait over twice as long for confirmation votes as Bush’s nominees did.

Senate Republicans have forced even the nominees whom they ultimately confirm to wait weeks or even months just for up-or-down confirmation vote. Since the Senate requires unanimous consent from its members to hold a vote, a single senator can block a vote indefinitely until he is forced to give up or he runs up against a cloture vote. Under President Obama, Senate Minority Leader Mitch McConnell has made extraordinary use of these quiet filibusters, sometimes blocking votes on judicial nominees for months, even when (as is the case the overwhelming majority of the time) no Republicans actually oppose the nominees in question.

One example of this was Robert Bacharach of Oklahoma, nominated to the Tenth Circuit Court of Appeals, who was filibustered for nearly nine months despite the fact that both of his conservative home-state senators said they supported him. When Republicans finally allowed Bacharach’s nomination to come to a vote, he was confirmed unanimously.

President Obama’s confirmed nominees to the lower courts have been forced to wait an average of 107 days between approval by the Senate Judiciary Committee and a confirmation vote on the Senate floor. At this point in George W. Bush's presidency, the average wait for his nominees was just 43 days. This escalation has been especially pronounced among district court nominees, who have historically been quickly approved for trial court positions. President Bush’s district court nominees were confirmed in an average of 34 days. Under President Obama, their average wait has nearly tripled to 100 days.

Caused a vacancy crisis on the federal courts.

Senate Republicans often claim the Senate is doing a great job confirming judicial nominees this year. But according to a PFAW fact sheet [pdf], “Since the start of the 113th Congress in January 2013, the confirmation rate has failed to keep up with the number of vacancies,” leading to more than one in ten seats on the federal courts being or soon to become vacant.

Since the start of this Congress, the number of federal judicial seats that are or will soon be vacant has risen from 90 to 110, an increase of more than 20 percent. The number of judicial emergencies – vacancies that have caused courts to face extraordinary backlogs in cases -- has risen from 27 to 38, an increase of 40 percent.

The Brennan Center also documents the huge surge in federal district court vacancies and judicial emergencies since the start of President Obama's term.

…and it’s not just judges.

Republicans have filibustered more of President Obama’s executive branch nominees than were filibustered under all other presidents combined. From 1949 through the end of 2008, the Senate held cloture votes to end filibusters of 20 executive branch nominees. So far in the Obama administration, the Senate has held cloture votes on 27 executive branch nominees. That means the Senate GOP is on pace to filibuster over twice as many of President Obama’s executive branch nominees as the total number filibustered under all previous presidents combined.

Among President Obama’s executive branch nominees who have faced unsuccessful cloture votes is Rep. Mel Watt, nominated to head the Federal Housing Finance Agency, who became the first sitting member of Congress to be blocked from an administrative position since before the Civil War.

PFAW Statement on Republican Filibuster of Robert Wilkins

WASHINGTON – The Senate today failed to overcome a Republican filibuster of the nomination of Judge Robert Wilkins to the U.S. Court of Appeals for the D.C. Circuit. Only two Republican senators – Susan Collins of Maine and Lisa Murkowski of Alaska – voted for cloture on Wilkins’ nomination.

Republicans are also filibustering President Obama’s two other nominees to the court, Nina Pillard and Patricia Millett.

The Senate unanimously confirmed Wilkins to his current post on the U.S. District Court for the District of Columbia in 2010.

Marge Baker, Executive Vice President of People For the American Way, said:

“Just three years ago, Senate Republicans found Robert Wilkins perfectly qualified to be a federal judge. Now, they’re filibustering his nomination to the D.C. Circuit simply because they don’t want President Obama to be able to fill that court’s vacancies.

“This is the latest example of Republicans in Congress attempting to circumvent laws they don’t like simply by obstructing the workings of government. They shut down the government in an attempt to nullify the health care law. They routinely filibuster nominees to executive agencies and departments that they don’t want to function. And now they’re going after judicial nominees simply because they don’t like the result of last year’s presidential election.

“This is unacceptable. These nominees are not going away. I hope that when they have a chance to vote again on these three nominations, reasonable Republican senators will follow the lead of Sens. Collins and Murkowski and allow yes-or-no votes.”

###
 

PFAW Memo: GOP Exceeds Expectations…on Executive Branch Obstruction

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.

###

 

Memo: Responding to False Claims on D.C. Circuit Court’s Workload

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.

###

They Tried to Break the Federal Government. Now They're Going After the Courts.

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.

Cross-posted from Huffington Post.

PFAW

The Nullification Strategy: How Senate Republicans Abuse the Filibuster to Undermine the Courts, Executive Agencies, and American Voters

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.

Ponnuru Uses Discredited Arguments on DC Circuit

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.

Cross-posted from PFAW.

Share this page: Facebook Twitter Digg SU Digg Delicious