Earlier today, for the third time in three weeks, Republican Mitch McConnell and his caucus refused to allow the United States Senate to proceed with considering another of President Obama’s nominees to fill one of the vacancies on the United States Court of Appeals for the District of Columbia Circuit.
The unsuccessful vote on the motion to end cloture was fifty-three ayes to thirty-eight nays. (Harry Reid was one of the nays for procedural reasons; he switched his vote so he could bring the nomination back up later).
Of course, in a democratic body, the ayes would have had it, because they were the greater number. Unfortunately, the United States Senate is not a democratic body; it is controlled by the few instead of the many under arcane rules that conflict with the spirit, if not the letter, of our Constitution.
It must be noted that Republicans are not holding up the nominations because they believe the individuals Obama has named are unqualified or lacking in temperament for the bench. Rather, they want the vacancies to go unfilled.
In fact, they want Congress to pass legislation to downsize the court, to borrow a buzzword we often hear coming out of corporate boardrooms.
Why are they opposed to filling the vacancies? Why do they want to shrink the court? Because the Court of Appeals for the District of Columbia Circuit currently has a right wing slant. Senate Republicans want to keep it that way, even though the American people just elected a Democratic president and Democratic Senate.
You may have heard of the term court-packing; what Republicans are trying to do here is the inverse. That is (and again, I’m not making this up) the only reason they are filibustering all three of President Obama’s highly qualified nominees: Patricia Millett, Nina Pillard, and Judge Robert L. Wilkins.
A disgusted President Obama released a statement through the White House a short time ago, excoriating Senate Republicans for blocking all of his nominees from further consideration. The text of that statement was as follows:
I am deeply disappointed that Senate Republicans have once again refused to do their job and give well-qualified nominees to the federal bench the yes-or-no votes they deserve.
The D.C. Circuit, considered the Nation’s second-highest court, has three vacancies. These are judgeships created by Congress. Chief Justice John Roberts and the Judicial Conference of the United States believe that these vacancies should be filled, not removed. And my constitutional duty as President is to nominate highly qualified individuals to fill these vacancies.
Patricia Millett, Nina Pillard, and Judge Robert Wilkins have all received the highest possible rating from the non-partisan American Bar Association. They have broad bipartisan support, and no one has questioned their merit. Yet Senate Republicans have blocked all three from receiving a yes-or-no vote.
This obstruction is completely unprecedented. Four of my predecessor’s six nominees to the D.C. Circuit were confirmed. Four of my five nominees to this court have been obstructed. When it comes to judicial nominations, I am fulfilling my constitutional responsibility, but Congress is not. Instead, Senate Republicans are standing in the way of a fully-functioning judiciary that serves the American people.
The American people and our judicial system deserve better. A majority of the United States Senate supports these three extraordinary nominees, and it is time for simple yes-or-no votes without further obstruction or delay.
Our good friends at the Alliance for Justice followed suit, issuing a strong condemnation of Senate Republicans following the vote.
“For the third time in as many weeks, the extremist minority in the Senate has filibustered a supremely-qualified nominee for the United States Court of Appeals for the District of Columbia Circuit,” said AFJ President Nan Aron. “By blocking Patricia Millett, Nina Pillard and now, Robert Wilkins, this minority has shown contempt for the Senate, contempt for democracy and contempt for the American people.”
“They have abused and exploited the rules of the Senate for nakedly political purposes, leaving senators of conscience no choice but to change the rules in order to restore faith in the democratic process and end the crisis in our courts.”
We at NPI agree. It became painfully clear years ago that the United States Senate is broken. To say that the filibuster is now abused on an incredible scale would be an understatement. Republicans have shown they will filibuster anything and everything in the U.S. Senate, unless it comes out of their own caucus.
There are those who like to argue that the filibuster protects minority rights. In our view, it is used now more to thwart majority rule than to protect minority rights from being trampled. Republicans use it constantly when the Senate meets.
At the very least, the filibuster needs to be reformed. Senate rules should be changed to prevent judicial and executive nominees from being filibustered.
It is ironic that Republicans were calling upon Democrats to give George W. Bush’s nominees an “up or down vote” only a few years ago.
On May 9th, 2005, then-Senate Majority Leader Bill Frist of Tennessee delivered a speech in which he complained Democrats were “attempting to change 225 years of constitutional history” by standing in the way of George W. Bush’s nominees.
Here’s an excerpt from his speech, courtesy of the Congressional Record:
For most of the 20th century the same party controlled the White House and the Senate. Yet until the last Congress, no minority ever denied a judicial nominee with majority support an up-or-down vote. They treated judicial nominees fairly. They respected the Senate’s role in the appointments process designed by the Framers.
Before the recess, I came to the Senate to offer a compromise. That proposal was simple: Appeals court judicial nominees should get a fair, open, and exhaustive debate, and then they should get an up-or-down vote. Whether on the floor or in committee, it is time for judicial obstruction to end no matter which party controls the White House or the Senate.
Senate tradition is comprised of shared values based on civility and respect for the Constitution. I sincerely hope that Senate tradition can be restored. It is a matter of fairness. It is a matter of honor. It is our constitutional duty to give these nominees a vote.
So much for constitutional duty. (Emphasis is mine).
Bill Frist, incidentally, wasn’t the only one voicing such sentiments at the time. Here’s John Ensign of Nevada, May 11st, 2005. Again, emphasis is mine:
I believe that anyone who has been nominated by the President and is willing to put his or her name forward and be subjected to the rigorous confirmation process deserves a straight up-or-down vote on his or her nomination in both committee and on the floor of the Senate. Guaranteeing that every judicial nominee receives an up-or-down vote is truly a matter of fairness. It doesn’t mean that there is no debate or opportunity to disagree. It does mean fair consideration, debate, and a decision in a process that moves forward.
I say that today with the Republican President in the White House and a Republican majority in the Senate, but I know we will uphold the up-or-down vote when we eventually have Democrats back in control. That is because this is the fairest way to maintain the health of the judicial nomination process and the quality of our courts.
Truly a matter of fairness, eh? Your confidence in your colleagues was misplaced, Senator Ensign. Now that Democrats are back in control, Senate Republicans are reflexively opposed to nominees getting an “up-or-down vote”.
Here is Idaho’s Mike Crapo, who is still serving in the Senate and spoke on the same day as John Ensign. He voted to filibuster today. But in 2005, he said:
The question, as I see it, is, Does the Constitution contemplate that the President is entitled to a vote on his nominees? And if so, is that vote a majority vote or is it a vote of a supermajority, like sixty, or two-thirds?
It has been argued on the floor today that all the Constitution contemplates is some kind of a vote, whether it be a sixty-vote supermajority, a two-thirds vote, or a majority vote, that the Senate can decide, but all the Constitution contemplates is some kind of a vote. I disagree. I believe the Constitution contemplated that by a majority vote the Senate would give its advice and consent.
I believe the best way to operate this Senate is to utilize the principle of advice and consent as one in which we should give the President an up-or-down vote on those nominees who are able to get sufficient support to get out of the Judiciary Committee to the floor of the Senate. As I say, historically, never, until the last Congress, has the Senate operated in any other way.
Evidently Mike Crapo no longer believes that the best way to operate the Senate is to give the President’s nominees an up-or-down vote.
The hypocrisy gets richer. Here’s Mitch McConnell, who also voted to filibuster today and is now the Senate’s top Republican. From his May 23rd, 2005 speech:
The Senate, as we all know, works not just through the application of its written rules but through the shared observance of well-settled traditions and practices. There are a lot of things one can do to gum up the works here in the Senate, a lot of things you could do. But what typically happens is we exercise self-restraint, and we do not engage in that kind of behavior because invoking certain obstructionist tactics would upset the Senate’s unwritten rules. Filibustering judicial nominees with majority support falls in that category. Let me repeat, it could have always been done. For 214 years, we could have done it, but we did not. We could have, but we did not.
This excerpt is really something, isn’t it?
My favorite part is the bit about exercising self-restraint. Obstructionist tactics are about the only tactics McConnell and his caucus believe in now.
This paragraph by the way, is from a McConnell speech in which he was trying to justify a proposed change to Senate rules to provide for up-or-down votes of judicial nominees. McConnell claimed Senate Republicans were within their rights to alter Senate rules by majority vote, and went on for some time about how Democrats had altered Senate rules in the past with a majority vote.
If Republicans were consistent, they would have voted to invoke cloture today, allowing Judge Wilkins’ nomination to go to a vote.
But since they are out of power in the Senate and in the White House, they are no longer interested in giving the President’s nominees up-or-down votes.
In 2005, they were prepared to change the Senate’s rules to end what they saw as abuse of the filibuster. Democrats didn’t actually use the filibuster that much during the Bush years, but even when they did, Republicans cried foul.
Now, Republicans use the filibuster all of the time and react indignantly and angrily to Democratic talk of a similar rules change.
If Republicans ever control the White House and the Senate again, they are not going to hesitate to change Senate rules themselves in the event that Democrats try to block their judicial nominees. They will revert to their previous position so fast that even Orwell would be impressed. So there simply isn’t a good reason for Democrats to hold off on acting now. Democrats should vote to change the United States Senate’s rules to prohibit filibusters of judicial nominees.