NPI's Cascadia Advocate

Offering commentary and analysis from Washington, Oregon, and Idaho, The Cascadia Advocate is the Northwest Progressive Institute's unconventional perspective on world, national, and local politics.

Monday, November 18th, 2013

Obama excoriates hypocritical Senate Republicans following today’s filibuster

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.

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One Comment

  1. I am against judi­cial fil­i­bus­ter­ing, but this selec­tive read­ing of his­to­ry is out­ra­geous and offen­sive. You quote Frist and his allies — do you remem­ber who was on the oth­er side of that debate then and what they were say­ing? Why don’t you quote them too and point out that they are reap­ing what they have sown? Fil­i­bus­ter­ing judi­cial nom­i­nees was not real­ly a thing until 2001. Lying about the his­to­ry does­n’t do any­thing pos­i­tive with respect to par­ti­san gridlock.

    # by Paul S :: November 21st, 2013 at 1:20 PM

3 Pings

  1. […] Bill Frist (R‑TN) in 2005 com­plained loud­ly that the Democ­rats were “attempt­ing to change 225 years of con­sti­tu­tion­al his­to­ry” by oppos­ing George Bush’s nom­i­nees. He went on: “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.” […]

  2. […] Bill Frist (R‑TN) in 2005 com­plained loud­ly that the Democ­rats were “attempt­ing to change 225 years of con­sti­tu­tion­al his­to­ry” by oppos­ing George Bush’s nom­i­nees. He went on: “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.” […]

  3. […] Bill Frist (R‑TN) in 2005 com­plained loud­ly that the Democ­rats were “attempt­ing to change 225 years of con­sti­tu­tion­al his­to­ry” by oppos­ing George Bush’s nom­i­nees. He went on: “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.” […]