Tag Archive: Cabinet Appointments

Nov 22 2013

Congressional Game of Chicken: Filibuster Has Been Mortally Wounded

Filibuster has suffered a mortal wound. In an historic vote, the Senate drastically change the game by eliminating the need for 60 votes to confirm a presidential nominee to executive and judiciary, ending at least some of the obstruction by Republicans that has hampered President Barack Obama’s administration. The final straw that changed the mind of Senate Majority Leader Harry Reid (D-VT) was the filibuster of the last three court appointment to the U.S. Court of Appeals for the District of Columbia Circuit, regarded as second only to the Supreme Court in influence, it plays a central role in upholding or knocking down federal regulations. The court was evenly divided between Democratic and Republican appointed judges with three vacancies that the Republicans were determined to keep vacant, along with the other 90 court vacancies, so long as Barack Obama was in the Oval Office. Thinking that Reid would never go “nuclear” and lacked the votes, the Republicans overplayed their hand angering the Democratic holdouts against limiting the filibuster. The changes will apply to all 1,183 executive branch nominations that require Senate confirmation, not just cabinet positions but hundreds of high- and mid-level federal agency jobs and government board seats. Needless to say, the Republicans are angry, as this also puts into play the possibility of ending filibuster altogether.

With filibuster gone, there is still an obstacle for judicial appointments known as the “blue slip rule.” As Kevin Drum explains at Mother Jones:

One of the Senate’s oldest traditions is that judicial nominees require approval from their home-state senators before they can move forward, and that approval comes in the form of a blue slip returned to the chairman of the Judiciary Committee. [..]

   Pre-1994: Generally speaking, only one blue-slip is needed for a nominee to move forward.

   1995-2000: Republicans take control of Senate and decide that two blue slips should be required. This makes it easier to kill Clinton nominees.

   2001: George Bush is elected president. Republicans no longer want to make it easy to block nominees, so they return to the rule that only one blue-slip is required to move forward.

   2001-02: Jim Jeffords defects, putting Democrats back in control of the Senate. They return to the rule requiring two blue-slips to proceed.

   2003: Republicans win back control of the Senate. They up the ante by effectively moving to a zero blue-slip rule: they’ll allow hearings on nominees even if no senators return blue-slips. Democrats threaten to filibuster over this rather obvious abuse of power and insist on a return to the two blue-slip rule.

   2007-Present: Democrats win control of the Senate and Pat Leahy of Vermont becomes chairman of the Judiciary Committe. Leahy is a traditionalist who maintains the two blue-slip rule.

By maintaining this rule, Sen. Leahy hurts Obama’s nominees in red states  where aggressive Republican refuse to approve even moderate judges.

As Chairman of this Committee, I have steadfastly protected the rights of the minority. I have done so despite criticism from Democrats. I have only proceeded with judicial nominations supported by both home state Senators. That has meant that we are not able to proceed on current nominees from Arizona, Georgia, Nevada, and Louisiana. I even stopped proceedings on a circuit court nominee from Kansas when the Kansas Republican Senators reversed themselves and withdrew their support for the nominee. I had to deny the Majority Leader’s request to push a Nevada nominee through Committee because she did not have the support of Nevada’s Republican Senator. I will put my record of consistent fairness up against that of any Judiciary chairman.

Perhaps this was why, even as a traditionalist, Sen. Leahy voted to change the filibuster rule.

On MSNBC’s All In, host Chris Hayes discusses the new rules and the history of filibuster with Senators Tom Udall (D-NM) and Tim Kaine (D-VA); former spokesman for Sen. Reid Jim Manley; and former Senate Parliamentarian Alan Frumin.

Nov 21 2013

Congressional Game of Chicken: Harry Finally Did It

After months of Republican obstruction, the Senate Democrats voted to end the need for 60 votes to bring the name of a executive or judicial nominee to the floor for approval. The vote to end filibuster passes 52 to 48 with three Democrats voting against the change, Senator Carl Levin (MI), Joe Manchin (WV) and Mark Pryor (AR).

With the rare presence of all 100 senators seated and Sen. Pat Leahy (D-VT) presiding as the president pro tempore, the change began when Majority Leader Harry Reid (D-NV) called up the nomination of Patricia Millett to the D.C. Circuit Court of Appeals for another vote. Senate Minority Leader Mitch McConnell (R-Ky.) then called for a five hour recess for time to find a resolution to void the rules change. That motion failed 46 – 54.

Reid opened debate in the morning by saying that it has become “so, so very obvious” that the Senate is broken and in need of rules reform. He rolled through a series of statistics intended to demonstrate that the level of obstruction under President Barack Obama outpaced any historical precedent.

Half the nominees filibustered in the history of the United States were blocked by Republicans during the Obama administration; of 23 district court nominees filibustered in U.S. history, 20 were Obama’s nominees, and even judges that have broad bipartisan support have had to wait nearly 100 days longer, on average, than President George W. Bush’s nominees.

“It’s time to change before this institution becomes obsolete,” he said, citing scripture — “One must not break his word” — in accusing Minority Leader McConnell (R-Ky.) of breaking his promise to work in a more bipartisan fashion.

McConnell responded to Reid by changing the subject to the Affordable Care Act and accusing Democrats of trying to distract Americans from the law’s troubled rollout. Getting around to fidelity, McConnell noted that Reid had said in July that “we’re not touching judges,” yet he was now choosing to do so. Reid casually brushed off his suit coat and sat down.

The Senate has finally put a partial end to a stupid rule that was originally intended to extend debate not block it. Now that the Democrats have shown some spine, the next move is to end the 60 vote threshold altogether.

Nov 21 2013

Congressional Game of Chicken: Filibuster Reform May Have Met Its Time

Yes, I know. It deja vu all over again, as Yogi would say. Lucy will snatch the football away again and whatever cliche that fits. Only this time the Republicans have boxed themselves in with their arguments over their blocking of President Barack Obama’s last three judicial appointments to the vacancies on the DC Circuit Court of Appeals. This is Greg Sargent’s assessment after the last filibuster of nominee Robert Wilkins, who is currently a U.S. District Court judge in Washington.

Senator Harry Reid appears set to go nuclear – before Thanksgiving. [..]

Reid has concluded Senate Republicans have no plausible way of retreating from the position they’ve adopted in this latest Senate rules standoff, the aide says. Republicans have argued that in pushing nominations, Obama is “packing” the court, and have insisted that Obama is trying to tilt the court’s ideological balance in a Democratic direction – which is to say that the Republican objection isn’t to the nominees Obama has chosen, but to the fact that he’s trying to nominate anyone at all.

Reid believes that, having defined their position this way, Republicans have no plausible route out of the standoff other than total capitulation on the core principle they have articulated, which would be a “pretty dramatic reversal,” the aide continues.

“They’ve boxed themselves in – their position allows them no leeway,” the aide says, in characterizing Reid’s thinking. “This is not a trumped up argument about the qualification of a nominee. They are saying, `we don’t want any nominees.'”

The aide says Reid believes he now has 51 Dem Senators behind a rules change, if it comes down to it. The Huffington Post reports that some Dem Senators who have previously opposed changing the rules – such as Barbara Boxer and Dianne Feinstein – are now open to it. “I believe that we are there,” the aide tells me.

With Boxer, Feinstein and Pat Leahy (D-VT) aboard, even if Senators Max Baucus (D-MT) and Claire McCaskill (D-MO) are noncommittal and Sen. Carl Levin (D-MI) firmly opposed, Reid ]may well have the 51 votes to reform. Reid met Wednesday with the advocates of reform and an invitation went out from Reid for a meeting on Thursday to discuss the rules change.

In an interview with The Huffington Post on Wednesday, Sen. Jeff Merkley (D-Ore.), one of the loudest champions of narrowing the filibuster, insisted that this wouldn’t be yet another instance of the football being placed invitingly in front of Charlie Brown’s foot. After a showdown this January resulted in a toothless set of procedural changes and another standoff this summer resulted in a fleeting pact between the parties, Democrats are beyond frustrated, the Oregon Democrat said. [..]

Aides on the Hill are equally adamant that this isn’t some big bluff on Reid’s part. One top aide told The Huffington Post that even if Republicans simply allowed for up-and-down votes on the president’s three nominees to the U.S. Court of Appeals for the District of Columbia Circuit (the nexus of this current filibuster fight) it wouldn’t dramatically alter the party’s thinking.

Chris Hayes, host of MSNBC’s All In, discussed why Harry Reid should use the nuclear option with Senator Jeff Merkley Dahlia Lithwick and Alan Frumin.

Reid is expected to move on reform before Thanksgiving. It could come as early as Friday. I am not holding my breath.

Nov 13 2013

Congressional Game of Chicken: Filibuster Reform Discussed Again

The side show over filibuster and Republican obstruction of President Barack Obama’s appointments to cabinet positions and to vacant seats on the bench, especially to the DC Circuit which hears some of the most important constitutional cases, has once again begun amidst the main event of the failure the roll out of the ACA. Senate Republicans filibustered a judicial nomination to the DC Circuit Court

President Obama’s latest choice to fill one of the vacancies on a powerful appeals court went down in a filibuster on Tuesday as Senate Republicans blocked another White House nominee – the third in two weeks – and deepened a growing conflict with Democrats over presidential appointments.

By a vote of 56 to 41, the nomination of Cornelia T. L. Pillard, a Georgetown law professor, fell short of clearing the necessary 60-vote threshold. [..]

The disagreements carried over onto the Senate floor on Tuesday, as Democrats accused Republicans of blocking a perfectly qualified woman for political purposes, while Republicans said Democrats were desperately looking for a wedge issue.

Looming underneath their disagreements about Ms. Pillard is the likelihood – which appeared to grow considerably on Tuesday – that the fight will escalate and result in a change to the Senate rules to limit the minority party’s ability to filibuster judicial nominees.

Senator Richard J. Durbin, the chamber’s No. 2 Democrat, warned Republicans that they were pushing the Senate dangerously close to a tipping point.

The Republicans attempt to reframe the argument saying that the DC Circuit isn’t as busy as other courts such as the 2nd Circuit in New York. The court handles most of the legal challenges to federal agencies, putting it at the center of fights over regulations – including the healthcare reform law and Obama’s push to regulate greenhouse gas emissions from power plants. After Tuesday’s vote, Senator Charles Grassley (R-IA) said, “We’re going by the standards that Democrats set in 2006.”

Their strategy: lock in the current 4-4 court by eliminating the empty seats and redistributing them to other circuits, because some other courts (ones that aren’t the first recourse for people suing Congress over legislation) have more cases. “In 2012, there were 512 ‘administrative appeals’ filed in D.C.,” said Grassley on Tuesday. “In the 2nd Circuit, there were 1,493. Stated differently, in D.C. there were only 64 administrative appeals per active judge. The 2nd Circuit has nearly twice as many with 115.”

That framing, which seemed like a stretch-no one also denies that the D.C. Circuit gets more pivotal cases than the 2nd Circuit-has since been universally adopted by the right. Ohio Sen. Rob Portman, the sort of Republican whom Democrats like to cut deals with, has endorsed Grassley’s Court Efficiency Act because it would “bring a reasonable end to the destructive partisan fights to which both parties have contributed.” A third-party ad hitting Arkansas Sen. Mark Pryor (a Gang of 14 member) right now accuses him of trying to “pack a key court with liberal judges” because he doesn’t want to eliminate the three open seats. Grassley points out that Democrats blocked a 2006 Bush nominee on the grounds that the seat didn’t need to be filled-what more evidence does he need?

“We’re going by the standards that Democrats set in 2006,” said Grassley after Tuesday’s vote. “They said that we didn’t need any more judges. And that’s exactly what I’m telling ’em, what they said! We’re just doing what they said. They set the standard and they can’t say we’re doing this because we’ve got a Democratic president, because I got a judge removed, the 12th one removed, when we had a Republican president.””

The problem with Grassley’s argument is that in 2006, the Republican’s got what they wanted. By threatening the “nuclear option,” the Democrats backed down and three very conservative, ideologues were appointed to the DC circuit. Funny how the Republicans can now support that which they opposed seven years ago.

Support for filibuster reform picked up a new supporter after the vote, Senate Judiciary Committee Chair Patrick Leahy (D-VT).

“If the Republican caucus continues to abuse the filibuster rule and obstruct the president’s fine nominees to the D.C. Circuit, then I believe … a rules change should be in order,” Leahy said on the Senate floor, just before Republicans blocked Nina Pillard’s confirmation to the D.C. Circuit Court of Appeals.

“That is not a change that I’ve wanted to see happen,” he continued. “But if Republican senators are going to hold nominees hostage without consideration of a nominee’s individual merits, drastic measures may be warranted.”

Leahy, laughing at the Republican excuse that each judge costs $1 million per year, stated the Republican government shut down cost billions of dollars that would have funded those appointments for years.

Contributing editor at the National Journal and resident scholar at the conservative American Enterprise Institute, Norm Ornstein laid out his reasons why it was time to stop the filibuster madness

Mel Watt was nominated by President Obama to head the Federal Housing Finance Agency-and was blocked by a Republican filibuster. The rationale that Watt was not qualified for the position was flimsy at best. If individual senators wanted to vote against him, they certainly have the right to do so on any basis. But to deny the president his choice for this post, a veteran and moderate lawmaker with sterling credentials and moral character, via filibuster, is nothing short of outrageous. Only two Republicans in the Senate, Rob Portman and Richard Burr, Watt’s colleague from North Carolina, voted for cloture.

Watt was not the only victim of a drive-by filibuster; so was Patricia Millett, a superbly qualified and mainstream nominee for the D.C. Circuit Court of Appeals. Only two Republicans supported cloture here; Lisa Murkowski and Susan Collins, and three others voted “present” (which was no help, since anything but a vote for cloture is meaningless with a rule requiring 60 votes, period, to end debate). The rationale here was even more flimsy than that used against Watt, namely that Obama is trying to “pack” the D.C. Circuit. FDR tried to “pack” the Supreme Court by adding seats to the existing Court. Barack Obama is moving to fill long-standing vacancies on the D.C. Circuit. On this Circuit, thanks to a slew of retired judges appointed by presidents long gone, conservatives have an edge that Mitch McConnell is determined to keep no matter what.

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. [..]

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.

But does Senate Majority Leader Harry Reid have the votes? Even with Leahy’s support this time, there may not be the 51 votes needed.

“If we can’t move ahead based on how the procedures have been perverted, we need to fix the procedures. That’s the deal,” said Larry Cohen, president of Communications Workers of America, which is leading a coalition lobbying for changes to filibuster rules.

Cohen said Reid “is willing” to change the rules but “the question is whether the leader can get 50 Democrats, not 49 or 48, to sustain that motion.”

A senior Democratic aide said Reid has not conducted a recent whip count and questioned how outside groups or rank-and-file Democratic senators would know the vote count if the leader attempted a rule change immediately.

“Any declarative statements at this point are extremely premature,” said the senior aide.

A cloture vote on the nomination on Robert Wilkins, a third nominee to the court, will be held in the near future. The Republicans have already indicated that his  nomination will also be filibustered. We’ll see if reform of this antiquated, misused rule gains more support after that.