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Govern, Don’t Obstruct: We Need a Working Senate

Liz Kennedy

They just don’t want to let President Obama govern. That conclusion is hard to avoid after the last few months of shutdowns, threats, and now unprecedented obstruction in the Senate that culminated in the third filibuster in three weeks of President Obama’s judicial nominees.

It is very telling that there have been few substantive objections made to the President’s recent choices to fill the three vacant seats at the United States Court of Appeals for the District of Columbia Circuit. Yet each of their nominations have been blocked, each of these qualified nominees have been denied the opportunity to serve, and the President’s choices for the federal bench, which he holds the constitutional authority to make, have been undone.

The DC Circuit court is commonly known as the nation’s second most important court, the “most powerful and prestigious appeals court” in the country. Senate Republicans know this, and they’re trying to deny President Obama the chance to appoint judges to fill the vacancies on the bench in order to preserve its current conservative majority.

This is the opposite of President Roosevelt’s attempted Supreme Court packing plan. Then, the conservative majority had been been striking down major New Deal programs and other minimum wage and worker protections. Because there weren’t enough vacancies to change the ideological calculus of the Court through standard appointments, President Roosevelt sought to change the direction of the Supreme Court’s jurisprudence by increasing the number of seats on the Supreme Court so as to be able to appoint more justices.

Here, there are three naturally existing vacancies on D.C. Circuit, and Senate Republicans are trying to maintain the current conservative majority on the D.C. Circuit artificially. They want to shrink the number of seats on the bench by refusing to allow the Senate to fill them with qualified nominees, many of whom have already been supported by large bi-partisan majorities in the Judiciary Committee.

In our system of government it falls to the President to nominate and the Senate to confirm federal judges to lifetime service on the bench. As President Obama noted, four of the most recent President Bush’s six nominees to the D.C. Circuit were confirmed, whereas four out of his five nominations to the D.C. Circuit have been denied a vote through the minority’s abuse of current Senate procedures.

The principle of minority protections in a majoritarian system is a sound one, but this abuse of the filibuster is unprecedented.  When President Johnson was Majority Leader of the Senate he faced only 1 filibuster, whereas under Leader Reid there have already been over 400 filibusters.

They are acting as if elections don’t matter. Senate Republicans would have more control over nominations to the federal bench if Mitt Romney had won the last election, or if they had won a sufficient number of races to gained control of the Senate. But Americans re-elected President Obama, and a Senate with a majority of Democrats.

The problem is, when a minority repeatedly blocks the legislative efforts of the majority, they can subvert the will of the people. They can thwart legitimate efforts to enact necessary policy changes. It is profoundly anti-democratic to seek to annul the consequences of the substantive choices registered by Americans at the ballot box.

The idea that Republican opposition is based not on the views or qualifications of the actual candidates for these jobs, but on “the fact that [the President is] trying to nominate anyone at all”, as Greg Sargent wrote, fails to cross the threshold of legitimacy. The idea that the next Republican president won’t turn around and nominate judges to vacant seats on the D.C. Circuit is risible.

Keeping the current conservative majority on the D.C. Circuit is important to Senate Republicans because this particular court has jurisdiction over many government agencies and decides the fates of many government regulations. These days, public interest policies must manage to get past special interest lobbyists and get passed by Congress, and then survive the regulatory process in order to become real legal protections for consumers, workers, the economy, or the environment – but they may get challenged in court by the same special interests that sought to block them in Congress, and that legal challenge could be decided by the DC Circuit.

In addition to the president’s judicial nominations, twenty-four of President Obama’s nominees to the executive branch have had their confirmation votes blocked by filibusters. This is unprecedented. In the history of executive nominees there were seven cloture votes under President George W. Bush, nine cloture votes under President Bill Clinton, and Presidents Reagan and Carter each faced only two cloture votes on their executive nominees. Yet People for the American Way reports that President Obama is on track to have forty of his executive nominees filibustered by the end of his term.

It’s a particular affront when the President is being repeatedly prevented from exercising his authority to choose his own cabinet and agency staff. These are jobs, after all, that Congress has determined are necessary for our government to function and meet the needs of Americans. Think about what it means to have a government left without qualified leadership in critical roles. Senate Republicans blocked the nominees to the National Labor Relations Board and the Consumer Financial Protection Bureau on the basis of opposition to these agencies themselves.

More Senators are recognizing that this is no longer a tenable situation. Senate Majority Leader Harry Reid reportedly plans to change the Senate filibuster rules by Thanksgiving; the Washington Post quoted a Reid aide saying “this is the only thing we can do to keep the Senate performing its basic duties.”

Senator Dianne Feinstein of California said that she supports a rules change for nominees. TPM reports that Senator Feinstein saying "it is unconscionable for a president not to be able to have his cabinet team, his sub-cabinet team, and not be able to appoint judges. I've been very shocked by the way very qualified nominees, particularly for the D.C. Circuit, have been filibustered," Feinstein said.

Senator Elizabeth Warren of Massachusetts has spoken forcefully on the issue, recently saying that “we need to call out these filibusters for what they are: Naked attempts to nullify the results of the last election … If Republicans continue to filibuster these highly qualified nominees for no reason other than to nullify the president’s constitutional authority, then senators not only have the right to change the filibuster, senators have a duty to change the filibuster rules. We cannot turn our backs on the Constitution. We cannot abdicate our oath of office.”

Senator Dick Durbin, the second ranking Senate Democrat, called the most recent judicial filibuster "disgraceful", and CNN reports he continued, “the Senate does not have the right to unilaterally determine that certain judicial seats and posts should never be filled by certain presidents. That's exactly what's happening today in the United States Senate."

Grover Norquist famously said that he wanted to shrink government to a size where he could drown it in a bathtub. It seems as if Senate Republicans are seeking to stop government by preventing qualified nominees from receiving an actual confirmation vote. This unprecedented attack is in line with other obstructionist tactics that are crippling our government and failing to serve the needs of American people. The time for serious governing without overweening obstruction is now.