Things Fall Apart: the Gang of 14 Eight Years Later

by Michelle D. Schwartz, Director of Justice Programs

As talk increasingly turns to Harry Reid’s potential invocation of the “nuclear option” to do away with the filibuster – at least on nominations – as early as July, it’s tempting to think back to the last time we heard such atomic language in the U.S. Senate.

It was 2005, and then-Majority Leader Bill Frist, frustrated by the filibusters of some of President George W. Bush’s judicial nominees by a then-Democratic minority, threatened to change the Senate rules through a simple majority vote.

What happened next is now Senate folklore:  eight years ago this week, a Gang of 14 rode in on horseback and saved the Senate from itself.

Or did they?

The Gang of 14 – seven Democrats and seven Republicans – agreed to filibuster judicial nominees only in “extraordinary circumstances.”  But an analysis of contested cloture votes on judicial nominations over the past eight years shows that, when push came to shove, only the Democrats in the Gang of 14 defined “extraordinary” in a way that’s recognizable to ordinary Americans.

Click to see full size

As the chart above shows, all seven Democratic members of the Gang of 14 served for the remaining 3 ½ years of President George W. Bush’s term.  During that period:

• There were six contested cloture votes on judicial nominees, meaning the Democratic Gang of 14ers had 42 opportunities to weigh in on contested cloture votes for judicial nominees.
• In all of those votes, there were only two no votes by Gang of 14 Democrats.
• No Democratic member of the Gang of 14 voted no more than once—and five Democrats never voted no.

The remaining Republican Gang of 14ers’ votes during the Obama Administration tell a vastly different story.  There are only four Republican members of the Gang of 14 who have served for some portion of President Obama’s almost 4 ½ years in office.  During that period:

• There have been eight contested cloture votes on judicial nominees (two on Caitlin Halligan).
• The Republican Gang of 14ers have had 31 opportunities to weigh in on contested cloture votes for judicial nominees.  (Senator Snowe retired at the end of the 112th Congress; as a result, she was not present for the second cloture vote on Caitlin Halligan.)
• Republican members of the Gang of 14 have voted no on cloture in 15 of those 31 cases—nearly 50 percent.
• Every Republican Gang of 14er has voted no at least three times.

Now, some have argued that the Gang of 14 agreement only applied to the remainder of the 109th Congress, which ended at the beginning of 2007.  However, the Democratic members of the Gang didn’t operate that way.  On October 24, 2007 – well into the 110th Congress – six out of seven of them voted to invoke cloture on now-Fifth Circuit Judge Leslie Southwick’s nomination, even though the majority of Democrats voted no and Southwick only garnered 62 votes for cloture.

More importantly, if even the most purportedly reasonable and moderate Republicans of eight years ago cannot be counted on today, how can we possibly expect to see forward movement in the Senate?
We will see critical tests in the coming weeks and months, not only on judicial nominations, but also on the President’s nominations to the Consumer Financial Protection Bureau, the Department of Labor, the Environmental Protection Agency, and the National Labor Relations Board.  It’s high time for Republicans to show that they are willing and able to staff the very institutions that allow our democracy to function.

Otherwise, it looks like more and more Senate Democrats are waking up to the realization that unilateral disarmament – like the Gang of 14 and the failed “handshake agreement” from earlier this year – leaves you in a precarious position during a nuclear standoff.

House should defeat "delay till they die" act

Alliance for Justice President Nan Aron issued the following statement today concerning the vote by the House Judiciary Committee in favor of the so-called Furthering Asbestos Claim Transparency Act.

With their penchant for Orwellian language, Republicans on the House Judiciary Committee have reported to the full House legislation they call the Furthering Asbestos Claim Transparency (FACT) Act.  But were there a truth-in-labeling requirement for legislation, it would be called the “delay till they die act” – because the real intent of this bill is to delay justice for asbestos victims until even more of them die.

As AFJ and other organizations explain in a letter released this week, since at least the 1930s asbestos companies and their insurers have been denying responsibility for the millions of deaths and injuries knowingly caused by this deadly product.  The companies hid the dangers posed by asbestos exposure, lied about what they knew, fought against liability for the harms caused, tried to change the laws that held them responsible, and to this day, they still fight against banning asbestos in the U.S.

In the 1990s, Congress passed legislation designed to ensure at least some compensation to victims even when companies reorganized under the bankruptcy code to free themselves of their asbestos liability.  It established trust funds to compensate victims while those companies reorganized.  This bill would make it more difficult for victims to get compensation by forcing the trusts to use their limited resources to respond to asbestos defense lawyers’ fishing expeditions, and by delaying chronically ill victims’ day in court during those fishing expeditions.

The asbestos industry is not interested in transparency. The bill places lengthy and burdensome new reporting requirements on victims seeking compensation for asbestos-related illnesses, but it has no comparable requirements for the asbestos companies who were responsible for the harm.  The legislation is one-sided, unfair and unnecessary.  It should be defeated.

Read the letter
Read our previous post on this bill
Read more about access to justice

Democracy on trial in the Senate

Republicans seek to obstruct Obama
executive, judicial nominees

Nan Aron

By Nan Aron
President, 
Alliance for Justice

            With battles ahead over President Obama’s choices for Secretary of Labor, Environmental Protection Agency Administrator, Consumer Financial Protection Bureau Director and the National Labor Relations Board, and fights over the nation’s second most important court likely to follow, democracy itself is on trial in the United States Senate.

            If Republicans persist in preventing yes-or-no votes on President Obama’s executive and judicial nominees, the only recourse will be for the majority to revisit Senate rules reform and put an end once and for all to Republican efforts to subvert the Senate’s constitutional obligation to provide advice and consent.
 

Richard Cordray

        The first test is likely to come this week. Senate Majority Leader Harry Reid says he will schedule a vote on President Obama’s nominee to lead the Consumer Financial Protection Bureau, Richard Cordray.  The CFPB was created as part of the Wall Street Reform law as an agency solely devoted to protecting consumers of financial products from mortgages to credit cards.  In a transparent effort to protect the very special interests that collapsed our economy and brought ruin to so many Americans, Republicans so far have refused to confirm Cordray. In fact, Republicans have said they won’t confirm anyone to run the CFPB.

            Republicans have been equally obstinate about the president’s nominees for the National Labor Relations Board, the independent agency charged with protecting the rights of workers – and a hearing on those nominees just last week showed no thaw in that obstinacy.  That’s why Cordray and some of the current NLRB members had to be named through recess appointments.

            But three Republican-appointed judges of the United States Court of Appeals for the District of Columbia Circuit, breaking with decades of precedent, decided that the President doesn’t have the power to make such recess appointments.  The decision is part of a pattern in which the D.C. Circuit consistently sides with corporate interests over workers and consumers – blocking Wall Street reforms, undermining labor rights, and rolling back environmental protections.

            So it’s no wonder that Republicans also are trying to prevent the president from restoring balance to the D.C. Circuit, which is currently dominated by Republican appointees.  The latest underhanded tactic from Republican Senators amounts to a ‘pre-emptive filibuster’ – an effort to eliminate three of the four vacant judgeships on the court in order to prevent President Obama from filling those seats.

Tom Perez

          But even that isn’t the end of the obstruction.  We are pleased that two Senate committees were able to overcome Republican stalling tactics and vote last week in favor of President Obama’s highly-qualified nominees to lead the Department of Labor and the Environmental Protection Agency.  The next step must be swift yes-or-no votes by the full Senate on the nominations of Tom Perez and Gina McCarthy.

            Unfortunately, these two outstanding nominees’ ordeals may be far from over.  All of the Republicans on both committees voted no.  As AFJ has pointed out before, to Senate Republicans, one of the only things as bad as a Labor Secretary who will protect working people is an Environmental Protection Agency administrator who will protect the environment.

           A solid majority of voters twice has made clear that they support the approach to government taken by Barack Obama.  In response, the Republican strategy boils down to rule-or-ruin.  They have shown themselves prepared to paralyze government, no matter what the cost to the American people.  In the days ahead, we will see if the Senate is ready to break free of this paralysis.

Grassley deserves "A" for creativity, "F" for content on "pre-emptive filibuster" of D.C. Circuit nominees

Sen. Charles Grassley (R-Iowa) deserves “an ‘A’ for creativity but an ‘F’ for content” for his scheme to obstruct future nominees to the nation’s second most important court, Alliance for Justice President Nan Aron said Thursday.

Aron was referring to Grassley’s plan to eliminate three of the four vacant judgeships on the United States Circuit Court of Appeals for the District of Columbia Circuit, a plan he raised again at a Senate Judiciary Committee meeting Thursday.

During that meeting, the committee voted in favor of president Obama’s nomination of Sri Srinivasan to fill one of four vacancies on the 11-judge court.  “But don’t be fooled: Today’s vote by no means shows Republicans’ willingness to stop playing games with the president’s nominees.  During the same meeting, Grassley announced what amounts to a ‘pre-emptive filibuster,' declaring his intent to eliminate the other three vacancies on the D.C. Circuit, effectively blocking any nominees to those seats,” Aron said.

Grassley cited what he claimed is a light workload for the court, based solely on the number of cases handled by each judge.  “That claim is as nonsensical as it is hypocritical,” Aron said.

Patricia Wald

“As the court’s former Chief Judge, Patricia Wald, has written, ‘The D.C. Circuit hears the most complex, time-consuming, labyrinthine disputes over regulations with the greatest impact on ordinary Americans’ lives . . . . These cases can require thousands of hours of preparation by the judges, often consuming days of argument, involving hundreds of parties and interveners, and necessitating dozens of briefs and thousands of pages of record – all of which culminates in lengthy, technically intricate legal opinions.’”

Aron also noted that “less than a week ago, at another meeting of the same committee, Sen. Grassley’s close Republican ally, Sen. Jeff Sessions said it was wrong to measure caseload by raw numbers without factoring in complexity.

“The hypocrisy is clear when one looks at Sen. Grassley’s own record.  When the caseload on the court was lighter than it is now, Sen. Grassley supported President George W. Bush’s nominees to fill all eleven seats on the court.

“The current majority on the D.C. Circuit has used its power to issue decisions undermining protections for workers, consumers, and the environment that affect all Americans,” Aron said. “Sen. Grassley and his allies are using every trick in the book to try to keep it that way.”

“If the Republican obsession with obstruction persists,” Aron said, “then the Senate majority must reform Senate rules to allow the will of the majority of Americans to prevail.”

Read more about the D.C. Circuit 
Read more about Grassley’s plan 

Republicans turn Senate rules, traditions into weapons of mass obstruction

Republican obstruction of the president’s nominees on the Senate floor through use of (often silent) filibusters has been well-documented, but in the past two days the public has seen what those of us working on judicial nominees have known for far too long – the obstruction is often just as bad at the committee level.

Gina McCarthy

Just one day after using an arcane procedural maneuver to delay a committee vote on the nomination of Tom Perez to serve as Secretary of Labor, Senate Republicans have used another underhanded ploy to delay a committee vote on the nomination of Gina McCarthy to lead the Environmental Protection Agency.  They boycotted a meeting of the Senate Committee on Environment and Public Works to prevent the Committee from even holding a vote.  Committee Republicans could hardly argue they lacked sufficient information to form an opinion on McCarthy – she answered more than 1,000 questions from committee members.

On one level this behavior is understandable.  To Senate Republicans, one of the only things as bad as a Labor Secretary who will protect working people is an Environmental Protection Agency administrator who will protect the environment.  But the brazen nature of these committee delay tactics is shocking nonetheless.

Unfortunately, in the context of judicial nominations, such committee delays have become commonplace – and start even earlier in the process.  By committee tradition,* the Senate Judiciary Committee typically won’t hold a hearing on a judicial nominee unless both home-state senators agree to allow the nomination to move forward.    Like any such tradition, it works only as long as it is not exploited.  But that is exactly what Senate Republicans are doing now.

That means some judicial nominees are stuck in limbo waiting for Judiciary Committee hearings months or years after they were nominated.  In many more cases, the White House – reluctant to impose that fate on nominees – is left waiting in vain for Republican home-state senators to help identify acceptable candidates.

And, coming full circle, hanging over all of this obstruction at the committee level (and sometimes before) is the knowledge that even if nominees survive those obstacles, they face the specter of the filibuster once they reach the floor.  The events of the past two days make clear, once again, that the weak-kneed agreement on Senate rules reached in January cannot come close to constraining the Republicans’ willingness to turn rules and traditions into weapons of mass obstruction.  The Senate needs to back to the drawing board and enact tough-minded rules reform now.

Read more about obstruction by Senate Republicans:

• In-depth report from The Huffington Post on how Republicans obstruct judicial nominees.
• Our overview of the need for Senate Rules Reform.
• The website of the rules reform coalition Fix The Senate Now.

*-Although this tradition has been in place to some degree for many years, not all Judiciary Committee chairmen have been as generous as the current one in waiting for both home-state senators to indicate assent before holding a hearing.