As Republicans gear up to filibuster yet another of President Obama's highly-qualified judicial nominees, Democrats are mulling Senate rule changes to allow a straight up-or-down vote on these picks. After unprecedented obstructionism on the part of the GOP, media should note that the so-called "nuclear option" may be the only way for these nominees to get a vote.
Republicans' Blanket Obstructionism Of President Obama's Nominees Is Unprecedented
Washington Post: Republican Obstruction Of Obama's Judicial Nominees Is "The Highest That's Ever Been Recorded." As The Washington Post's Greg Sargent wrote, the "nuclear option" would change the Senate rules to prevent the minority party from continuing to block a simple majority vote on the president's nominees, a procedural move that has been shown to be "unprecedented" obstructionism:
Dr. Sheldon Goldman, a professor of political science at the University of Massachusetts who focuses on judicial nominations, has developed what he calls an "Index of Obstruction and Delay" designed to measure levels of obstructionism. In research that will be released in a July article he co-authored for Judicature Journal, he has calculated that the level of obstruction of Obama circuit court nominees during the last Congress was unprecedented.
Goldman calculates his Index of Obstruction and Delay by adding together the number of unconfirmed nominations, plus the number of nominations that took more than 180 days to confirm (not including nominations towards the end of a given Congress) and dividing that by the total number of nominations. During the last Congress, Goldman calculates, the Index of Obstruction and Delay for Obama circuit court nominations was 0.9524.
"That's the highest that's ever been recorded," he tells me. "In this last Congress it approached total obstruction or delay."
By contrast, during the 108th Congress, from 2003-2004 -- which is the most comparable, because George W. Bush was president and Republican controlled the Senate, meaning Dems had to use procedural tactics available to the minority to block nominations -- the Index of Obstruction and Delay for Bush circuit court nominations was far lower, at 0.6176.
On Obama's district court nominations during the 112th Congress, Goldman's Index of Obstruction and Delay was a high 0.8716, he says. Nothing in Bush's years comes even close, he adds.
"It is true that when Democrats controlled the Senate and Republicans were in the White House, the index has spiked, especially during Bush's first two years," Goldman says. "But it is unprecedented for the minority party to obstruct and delay to the level that Republicans have done to Obama in the 112th Congress." [The Washington Post, 6/4/13]
People For The American Way: "Unprecedented Level Of Obstructionism" On Pace To Filibuster 40 Executive Nominees. PFAW notes that much of the obstructionism is unrelated to the nominees' personal qualifications and is motivated because the GOP does "not wish to allow the agencies and departments to which they have been nominated to do their work":
In the last four months, eight additional executive branch nominees have faced filibusters from Republicans intent on blocking their nominations. These include 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.
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. [People For The American Way, 11/18/13]
Republicans Have Unfairly Targeted Nominees Who Are Qualified And Diverse
Huffington Post: Nominees Are "Noncontroversial" And The "Diversity Of The Group Is Hard To Overlook." In blocking Obama's executive and judicial nominees, Senate Republicans have succeeded in preventing a highly-qualified and highly-diverse group from government service. As the Huffington Post reported:
Senate Republicans filibustered another one of President Barack Obama's nominees on [November 12]: Nina Pillard, a Georgetown University law professor and a noncontroversial nominee to the D.C. Circuit Court of Appeals.
Republicans readily admit their opposition to Pillard isn't about her. In fact, they don't really have a problem with any of Obama's picks for the D.C. Circuit, the second most powerful court in the nation. They just don't want him to fill its three vacancies. Many of them say the court isn't busy enough to warrant filling its empty seats; others make the counterintuitive argument that Obama is "court-packing" by filling routine vacancies. But both of those arguments gloss over the fact that the president, any president, has a constitutional duty to fill empty court seats, and barring extraordinary circumstances, the Senate is supposed to give nominees a vote.
Pillard's filibuster is the latest example of how the Senate isn't holding to that standard anymore. Not only is she the third noncontroversial nominee that Republicans have filibustered in the last two weeks, but she is now the 20th Obama nominee who is either currently being blocked or was blocked and ultimately withdrew from the process. Those blockages cause a logjam that reverberates through the judiciary and the executive branch, as positions have gone unfilled at crisis levels dating back to 2007.
The diversity of the group is hard to overlook. Ten of the sidelined judicial nominees are women, two are openly gay and nine are minorities (seven are African American, one is Asian American and one is Native American). The lone executive nominee being blocked right now, Rep. Mel Watt (D-N.C.), is African American.
Democrats have noted that Republicans keep filibustering female nominees to the D.C. Circuit. Sen. Tim Kaine (D-Va.) wondered aloud on the Senate floor "whether there is a double standard" when it comes to putting women on that court. Before Pillard, Republicans also blocked Patricia Millett and Caitlin Halligan. [Huffington Post, 11/13/13]
Filibusters Are Contrary To GOP Senators' Previous Agreement
Constitutional Accountability Center: Sen. John McCain "Reneg[ed] On His Words" To Give Qualified Nominees An Up-Or-Down Vote. According to the Constitutional Accountability Center, Senate Republicans who agreed to a compromise in 2005, known as the "Gang of 14," have repeatedly violated that agreement:
In 2005, Senator John McCain (R-AZ) joined 13 other Senate colleagues in forming the so-called "Gang of 14," a bipartisan group that agreed not to filibuster judicial nominees except in "extraordinary circumstances." This deal resulted in the confirmation of a number of extremely controversial George W. Bush nominees, including Janice Rogers Brown to the D.C. Circuit (one of four judges put on that court by President Bush). Since then, Brown has been a stalwart conservative vote on the D.C. Circuit ... , a court that is heavily dominated, 9-5, by Republican-appointed active and senior judges. And Senate conservatives, led by Charles Grassley (R-Iowa), have been doing everything they can to keep it that way.
Which is why it was particularly refreshing when Senator McCain stated this past June that all three of President Obama's pending nominees to the D.C. Circuit -- Patricia Millett, Nina Pillard, and Robert Wilkins -- deserve up-or-down confirmation votes on the Senate floor. In other words, that none of them should be filibustered, and each considered on his or her merits. As Senator McCain further noted, "Elections have consequences."
However, in floor votes over the last two weeks, someone who looks like Senator McCain and calls himself Senator McCain has voted to filibuster Millett and Pillard, and is likely to do the same when Wilkins is considered later today, supporting Republicans' efforts to deny each of these highly-qualified nominees the up-or-down vote that McCain himself had previously stated each one deserves. Apart from reneging on his words, this John McCain has not even tried to articulate what "extraordinary circumstances" exist that could possibly warrant such obstruction of these highly-qualified nominees under his Gang of 14 standard. [Constitutional Accountability Center, 11/18/13]
This Nomination Fight Goes Beyond Typical Congressional Gridlock
Congressional Expert Norm Ornstein: "Flimsy," "Outrageous," "Drive-By Filibuster[s]" Are Not In Accord With Senate Tradition. American Enterprise Institute Scholar Norm Ornstein argued for a rules chance in the Senate if all three D.C. Circuit nominees are filibustered because "reflexive party loyalty" is threatening the institution:
When Harry Reid and McConnell reached a deal on filibusters in January, it was clear that a key component of that deal was that Republicans in the Senate would give due deference to a newly reelected president in his executive nominations, and would only oppose judicial nominations for courts of appeals under "extraordinary circumstances," which clearly means judges without clear qualifications or experience, or extreme ideologies. No one could accuse Millett of either of those characteristics. This is all about denying a president the right to pick judges to fill existing vacancies. Two more nominees for the D.C. Circuit are coming up soon, the real test of whether Republicans will continue to flout the January agreement and threaten fundamental comity in the Senate.
Watching senators like Lamar Alexander, Bob Corker, Mike Johanns (John Y. would not approve), Mark Kirk, John McCain, and Lindsey Graham join both of these filibusters, and Lisa Murkowski and Susan Collins join one, is painful. These are the problem solvers, and they have let reflexive party loyalty overcome what should be a protection for the Senate and its traditions. These kinds of filibusters are not a part of those traditions.
If the other two D.C. Circuit nominees are filibustered and blocked, I would support Harry Reid's move to change the rules now, to move from a 60-vote requirement to stop debate and vote to a 40-vote requirement to continue debate. The argument that if he does so, Republicans will do the same thing when they take the White House and Senate is a bad one: Can anyone doubt that McConnell would blow up the filibuster rule in a nanosecond if he had the ability to fill all courts with radical conservatives like Janice Rogers Brown for decades to come? I hope it does not come to this--and that the problem solvers in the Senate keep their titles, preserve their institution, and stop the filibuster madness. [National Journal, 11/6/13]