Democrats incensed after GOP blocks Obama federal court nominee

By Dan Roberts, The Guardian

Democrats call for rule change and say move broke informal agreement between parties

Democrats threatened a major constitutional showdown over Senate filibuster rules on Tuesday after Republicans blocked a third successive woman nominated to sit on a federal appeals court.

Nina Pillard, a Georgetown law professor, would have been only the sixth woman in 120 years to serve on the US court of appeals for the District of Columbia circuit, which is known as the second highest court in the land due to its key role in ruling on legal challenges against the US government.

However, Senate Republicans voted to block passage of legislation confirming her nomination, using rules that require a 60-vote majority to prevent a filibuster, or indefinite procedural delay.

Angry Democrats decried the move – the third involving a woman nominated to the court by president Obama – which they said broke an informal agreement between the parties that judicial confirmations should require only 51 of the 100 senators to vote in favour.

“I have seen more filibusters in a year than I have seen in 35 years. I think we are at the point where there will have to be a rules change,” said senator Patrick Leahy, Democratic chairman of the judiciary committee.

“This has reached the point where judges are being voted on for political reasons, not qualifications. You do that and you are going to destroy the credibility of the federal courts,” he added.

It is unclear how such a rule change might be accomplished, particularly as past attempts have been scuppered by some Democrats anxious to avoid giving up their own power to block legislation were they to lose their current numerical advantage in the Senate.

But a series of apparently gender-driven attacks against the judicial nominees on the basis of their previous opinions on abortion and women’s rights has angered much of the party, leading to shouting on the floor of the Senate from Leahy, who said the time had come for “drastic action”.

Democratic whip Dick Durbin said: “We have been here before, but there comes a tipping point and I am afraid we have reached it.”

Senator Amy Klobuchar added: “The so-called gentleman’s agreement has not treated these women very well.”

Republicans dismissed claims that their opposition was driven by the gender of the nominees, arguing instead that Obama was unnecessarily “stacking” to court with ideological appointees to help him circumvent Congress.

“I have heard the other side say that Republicans are opposing the nominee because of her gender,” said senator Chuck Grassley. “That is grossly offensive. It is a well-worn card played against us.”

Grassley claimed the White House is planning to overcome recent gridlock in Congress by issuing so-called “executive orders” on issues such as climate change and gun control and needs a Democratic majority on the court to avoid legal challenge.

“The only way the president can successfully bypass Congress is if he stacks the court with ideological allies,” he said.

Republican whip John Cornyn claimed this justified ignoring previous agreements to hold simple majority votes on nominations. “The desire to make the court a liberal rubber stamp creates the extraordinary circumstance that justifies a filibuster,” he said.

The GOP also sought to argue that the court, which has four judges nominated from each party but a majority of Republican semi-retired justices, has sufficient staff already to handle its workload.

But it is the party’s criticism of nominees such as Pillard for their past comments on fertility issues that have sparked most controversy.

During debate in committee, senator Ted Cruz claimed she was “considerably outside of the mainstream” for making pro-choice comments in a 2007 academic paper.

“Reproductive rights, including the rights to contraception and abortion, play a central role in freeing women from historically routine conscription into maternity,” wrote Pillard.

“It is reproductive rights that have begun to allow women to decide whether and when to follow the path of motherhood.”

On Tuesday, Durbin said it was “shameful” that Republicans had criticised her nomination because of such statements.

“It is no secret she’s written articles arguing for equality between men and women. Some find this radical thinking; most American people think it should be the law of the land.”

He also attacked the “old trick” of frustrating nominations using a filibuster. “To do it to an amendment is bad enough, but to do it to a human being is something we should think long and hard about.”

Key Democrat Warns GOP: Lift Your Blockade On Three Key Judges Or The Nuclear Option Is Coming

BY IAN MILLHISER/Think Progress

Sen. Patrick Leahy (D-VT), the chair of the Senate Judiciary Committee and the senior-most member of the Senate, has a warning for his Republican colleagues — either they back off their efforts to maintain Republican control over a powerful federal court, or they could lose their ability to filibuster judicial nominees forever. Currently, most Senate Republicans plan to filibuster all three of President Obama’s nominees to the United States Court of Appeals for the District of Columbia Circuit, often citing misleading statistics to claim that no more judges are needed on this, the second most powerful court in the country. If these filibusters succeed, it will maintain GOP dominance over a court that blocked environmental regulations which would prevent tens of thousands of deaths and that at one point threatened to shut down nearly all federal legal protections for unionized workers.

On Tuesday, however, Leahy warned that if these three nominees are successfully filibustered “I think that the pressure on changing the rules would be almost insurmountable.” Last July, Senate Democrats came within a hair of pulling the trigger on the so-called “nuclear opinion,” a procedural maneuver that allows the Senate’s rules to be changed with just a simple majority vote, though they backed off after Republicans stopped blocking confirmations to seven top government jobs.

Leahy’s warning to his GOP colleagues is particularly significant because more senior Democrats have historically been more reluctant to support filibuster reform than the more junior members of the Democratic caucus. Now, however, the most senior member of the caucus is threatening reform relatively early in the fight to confirm the three D.C. Circuit nominees.

WSJ Urges GOP To Obstruct Obama Judicial Nominees With Filibuster

HANNAH GROCH-BEGLEY/Media Matters For America

The Wall Street Journal encouraged Republican obstructionism by calling on the GOP to filibuster President Obama's nominees for the U.S. Court of Appeals for the District of Columbia circuit, ignoring that historic levels of GOP obstructionism have caused judicial emergencies and falsely claiming that Obama is trying to "pack" the court.

On June 4, Obama nominated Cornelia Pillard, Patricia Millett, and Robert Wilkins to fill vacancies on the D.C. Circuit. In his June 4 remarks announcing the nominations, Obama highlighted that Republicans have routinely blocked his nominees to the court in the past, and asked that the Senate give his current nominees an "up or down vote" without partisan obstruction. If Republicans filibuster these current nominees, Senate Democrats may move to change filibuster rules in order to allow a simple majority to confirm nominees.

Despite these remarks, a June 5 Journal editorial urged Republicans to obstruct Obama's most recent nominations, claiming that Democrats were bluffing in their response to the filibuster and falsely stating that the President sought to "pack a court that is often considered the second most important in the country."

But as Media Matters has noted, filling vacant seats is nothing like court packing, which seeks to change the total number of seats on the court. The D.C. Circuit currently has several of its judgeships vacant, resulting in judicial emergencies as the vacancies leave the court skewed towards the Republicans on the bench. The resulting decisions have been unsurprisingly hostile to progressive legislation and policy supported by Democratic presidents.

Furthermore, the Journal itself has previously reported on the negative effects of the rampant GOP obstructionism that has prevented the administration from addressing these judicial emergencies. TheJournal's Washington Bureau Chief Gerald F. Seib detailed how GOP obstructionism made the Senate "an embarrassment to itself" that "increasingly infects the rest of government with its paralysis."

In fact, according to Dr. Sheldon Goldman, a political science professor at the University of Massachusetts who focuses on judicial nominations, "the level of obstruction of Obama circuit court nominees during the last Congress was unprecedented." The Washington Post's Greg Sargent explained Goldman's research:

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.

After Filibustering Judicial Nominees, McConnell Falsely Claims That He Opposes Judicial Filibusters

By Ian Millhiser

Ever since President Obama took office, Republicans have waged an unprecedented campaign of obstruction against the president’s judges. As a result, nearly one in nine federal judgeships are vacant and federal judges are now retiring faster than new judges are being confirmed. Yet Senate Republicans Leader Mitch McConnell took to the Senate floor yesterday to make the astounding claim that he has always been a champion against filibusters of judicial nominees:

Some have also suggested that one’s view of the filibuster depends on where one sits. And it’s true that when I was in the majority I opposed filibustering judicial nominees. But I opposed doing so when I was in the minority too, and I opposed doing so regardless of who was in the White House. In short, I was against expanding the use of the filibuster into an area in which it traditionally had not been used—period.

Watch it:

McConnell is simply not telling the truth about his record on judicial filibusters. While McConnell certainly joined his caucus in claiming that such filibusters were unacceptable when President Bush was nominating judges, McConnell literally filibustered the very first nominee named by President Obama. McConnell was one of 29 Republicans who joined a failed filibuster attempt against Judge David Hamilton, the first person nominated to a federal judgeship after Republicans lost the White House.

And judicial nominees are hardly the only victims of McConnell’s single-minded campaign to prevent the Senate from functioning. Indeed, the minute McConnell became Minority Leader, the number of filibusters spiked massively:

So while McConnell’s claim to consistency on judicial filibusters is obviously false, he has been consistent on one thing: doing everything in his power to make sure only conservatives are allowed to govern.

GOP Senators Target Judicial Nominees of Color

From People for the American Way

There are two important facts about Republican senators’ unprecedented obstruction of judicial nominees that should not be lost in the crush of important legislation being passed by the lame duck Congress: President Obama’s District Court nominees have experienced unprecedented obstruction, and every District Court nominee who faced unanimous Republican opposition in the Senate Judiciary Committee is a person of color.

While it’s not uncommon for some nominees for Courts of Appeals vacancies to receive intense partisan scrutiny, nominees to the District Courts, which process the vast majority of cases, have long been granted more deference. Since 1945, only five nominees for seats on District Courts have received party line votes in the Senate Judiciary Committee.

In President Bush’s eight years in office, a single District Court nominee (Leon Holmes, a highly controversial nominee who made light of rape victims and slavery) received a party line vote in committee. In just the first two years of President Obama’s term, four nominees have been subjected to unanimous GOP opposition in committee. All four of these nominees are people of color.

These nominees include:

• Former Wisconsin Supreme Court Justice Louis Butler, whose work as a judge irked business interests so much, they spent $1 million to prevent his reelection
• U.S. Magistrate Edward Chen, who has been attacked for his work fighting discrimination against Asian Americans for the American Civil Liberties Union
• Benita Pearson, whose nomination was opposed because she is a member of groups opposed to animal cruelty
• William Martinez, who was opposed for his pro-bono work with the ACLU of Colorado (including providing support for a high school student sent home for wearing an anti-Obama t-shirt)

Two of the nominees, Butler and Chen, never received a vote on the floor of the Senate. All four of these nominees would have been approved easily in any other Congress, but since President Obama took office, Republican senators have been focused on opposing his nominees and initiatives for purely political purposes.

Given the energy Republicans put into blocking these four nominees, it’s also worth noting that the Circuit Court nominee they opposed most energetically is also a person of color: Goodwin Liu, who would be the only Asian American judge on the 9th Circuit Court of Appeals.

On recent issues ranging from the nuclear security to fairness for immigrant children, Senate Republicans have shown an unprecedented willingness to play politics with important issues. Their treatment of judicial nominees show that the GOP is willing to bring the same cynicism to the federal courts, and the racial composition of the nominees they’re blocking shows just how troubling the impact of those politics can be.