Nan Aron on "The Broken Senate"

This is AFJ President Nan Aron's statement for today's forum at the National Press Club called "Fixing the Broken Senate: Restoring Democracy and Fixing the Filibuster."  

 ●Watch video of the forum at www.afj.org 
 ● Read more about Senate rules reform

Alliance for Justice is very pleased to be a part of this discussion about the “Broken Senate.” I feel like we’re coming to the end of the fifth season of a bad reality show.

Nan Aron

But what’s happening in the Senate is not fiction. It’s very real. The abuse of the filibuster has become a threat to the proper functioning of the government and to public faith in the institution of the Senate.  A recent poll by The Economist put the approval rate of Congress at nine percent. That’s incredible, but not really surprising.  It does make me wonder who those nine percent are. Family members? Campaign consultants?

It’s deplorable that the American people have so little regard for a crucial part of our government. It’s unhealthy for our democracy. And I don’t think there is any question that at least part of the problem has been the rampant misuse of the filibuster in the Senate, which has led to stalemate and gridlock in spite of the enormous problems the country now faces.

Let me be clear about something: The filibuster has a legitimate role when used responsibly. But we have entered an era of unprecedented abuse of rules and traditions, which is forcing the Senate to the brink of drastic action. The filibuster traditionally has been used to allow a minority to make a principled stand on matters of enormous and unusual importance.  It forces the process to slow down and helps ensure that all voices are heard. It’s a signal that something of significance is at stake. But that’s not what’s happening now.

This is the crucial point to understand.  As the motivation behind the filibuster has changed and its frequency increased, its legitimacy has declined. The fights over President Obama’s judicial nominees, for instance, are not ideological in any real sense. The president has gone out of his way to nominate men and women from the legal and political mainstream. Who could honestly say that the filibuster of Caitlin Halligan was some kind of titanic ideological fight?

Today’s filibusters are just crass politics. They reflect a desire to block the president’s agenda at every turn and feed the insatiable need of a hyper-partisan political base for endless obstruction. We’re in an era where one side believes cooperation is a dirty word—or an invitation to a primary challenge. When that intransigent attitude is paired with a procedural weapon as potent as the filibuster, gridlock is the result.  And that’s what makes the situation different today from what it has been in the past. And that’s why the nuclear option is back on the table.


Serious talk about changing the rules has been reborn because the filibuster has evolved from a                            
targeted tool to a weapon of indiscriminate disruption. The entire legislative process is now held captive to this threat. We’ve gotten to the point where just the threat of a filibuster is enough to derail the Senate. The abuse of the process has created a de facto threshold of 60 votes for action—a supermajority requirement for everyday business that can be found nowhere in the Constitution.

It’s important to remember that the problem isn’t just that bills and nominations with clear majorities are stopped, but that many nominations are never made and bills are never proposed, even though they could achieve a simple majority if they were given a chance. There is an invisible price for gridlock that the public never sees.

Obviously, the first test will come in the next few days when cloture petitions are expected to be filed on a series of executive branch nominees—Richard Cordray, Tom Perez, Gina McCarthy, and nominees for the National Labor Relations Board. What happens to these highly qualified nominees will set the tone for the rest of this Congress. If Republicans continue their current behavior and prevent final votes, then the choices will be narrowed to two options: allow crucial agencies that deal with hugely important issues to be left leaderless or reform the rules to permit up-or-down votes.

But the battle over executive nominees is just the beginning. The next big fight looming later this summer is over the President’s three nominees to the D.C. Circuit Court of Appeals.  This is a case of the Republicans engaging in what will be a kind of Group Filibuster, where they don’t even pretend to care about the qualifications or ideologies of the individual nominees.  They just don’t want anyone appointed by President Obama to this crucial court no matter who they are.

Senator Grassley has complained that the President is trying to “pack the court,” as if filling vacant judgeships is some kind of unprecedented power grab. Republicans pretend to be outraged that the president has sent names forward for empty seats on the 11-member D.C. Circuit--just like every other president has done since the Grover Cleveland administration. This would be laughable if the consequences weren’t so serious.

Of course, we know why the Republicans will threaten to filibuster Patricia Millett, Nina Pillard, and Robert Wilkins. The D.C. Circuit is the federal appeals court that most closely oversees the actions of federal agencies on topics like the environment, consumer protections, workers’ rights, banking regulations, and other vital issues. Those are the same issues, by the way, that are at stake in the current executive nominations fights.  In some ways, the two big summer battles over executive and judicial nominations are really one big fight over the future of the country. Fair enough. But the question is, will the Senate be permitted to bring these issues to a final vote on the merits, or will procedural hurdles be erected to prevent democracy from functioning.

So at some point in the next several months, when the three DC Circuit nominees reach the floor, the Senate will have to make another set of choices, just like the ones it will start to face next week on executive nominations. Either accept the obstructionism of a hyper-partisan minority or change the rules to allow the President and the Senate to do the jobs the Constitution demands of them.

For those who care about our democracy and the courts, the choice is easy.

The American people are saying enough is enough. The time for reform is rapidly approaching.

Supreme Court should hear appeal of recess appointment decision ASAP

As expected, the Obama Administration is asking the Supreme Court to review a ruling by the United States Court of Appeals for the District of Columbia Circuit that nearly eliminates the ability of a president to make “recess appointments” to federal agencies.

Caitlin Halligan

With Senate Republicans abusing the filibuster at an unprecedented rate, a recess appointment sometimes is the only way to fill vacancies.  Indeed, Republicans have used the filibuster to cripple agencies they don’t like, such as the National Labor Relations Board (NLRB) and the Consumer Financial Protection Bureau.

But when the president used his only alternative, recess appointments, the D.C. Circuit broke with decades of precedent and decisions from every other circuit to rule on the issue to invalidate those appointments.   The decision being appealed now, discussed in detail in this previous post to Justice Watch, left the entire NLRB in limbo.   That post also discusses the fact that this kind of extreme activism is nothing new for the conservatives on the D.C. Circuit – a court widely viewed as the nation’s second most powerful.

They get away with it because there are four vacancies on the eleven-member court, and among the remaining seven judges, conservatives hold a majority.  Senate Republicans are going to extremes to try to keep it that way.  First, they filibustered an excellent nominee, Caitlin Halligan, and now some Republicans are trying to eliminate three of the Court’s seats.

The Supreme Court should hear this challenge as soon as possible.  President Obama needs to move full speed ahead and send the Senate enough nominees to fill every vacancy on the court.  And Senate Democrats need to reform Senate rules, if that’s what it takes, to break the Republican addiction to obstruction.

AFJ condemns Grassley "court-packing scheme"

The previous post to this blog discusses misleading claims by Sen. Charles Grassley (R-Iowa). Now, he's at it again. Here's AFJ's response:

Legislation sponsored by Sen. Charles Grassley (R-Iowa) to reduce the number of judges on what is widely viewed as the nation’s second most important federal court is a "court-packing scheme" to keep the court in the hands of staunch conservatives, according to Alliance for Justice.

Sen. Charles Grassley (R-Iowa)

Claims by Grassley and others that the court's workload doesn't justify the current number of judges are “false and hypocritical,” said AFJ President Nan Aron.

“There is more than one way to pack a court to suit one’s ideological preferences,” said Aron.  “Now that they are facing increasing pressure to stop blocking President Obama’s nominees, Republicans have come up with a new plan: just get rid of the vacancies.”

At issue is the United States Court of Appeals for the District of Columbia Circuit. The D.C. Circuit most closely oversees actions of federal regulatory agencies.

“The conservative 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. “This activism is possible only because there are four vacancies on the court. 

“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.  But now that President Obama has the opportunity to restore balance to the court, Sen. Grassley proposes to get rid of the vacancies by eliminating three of the 11 seats on the court.”

Aron noted that Grassley’s caseload calculations fail to take into account the extraordinary complexity of many cases heard by the D.C. Circuit.

For an explanation of the importance of the D.C. Circuit and examples of its majority’s political agenda, see our briefing paper on the D.C. Circuit.

AFJ applauds committee approval of Halligan, other judicial nominees

In a previous post to this Blog, we noted the urgent need to fill vacancies on the U.S. Court of Appeals for the D.C. Circuit.  Today, the Senate Judiciary Committee took a step in the right direction.  Here is AFJ's statement:

Alliance for Justice applauds the Senate Judiciary Committee’s decision to advance 13 unquestionably qualified nominees to the Senate floor, including Caitlin Halligan’s nomination to the D.C. Circuit. 

Caitlin Halligan

“Ms. Halligan is the personification of the phrase ‘tough, but fair,’” said AFJ President Nan Aron.  “She’s a prosecutor who works to enforce the law, but at the same time, to ensure that government power is exercised fairly, and with an understanding of the impact that power has on the lives of individuals, families, and communities.”

Halligan has overseen numerous units within the Manhattan D.A.’s office, including the Conviction Integrity Program, which seeks to prevent wrongful convictions, and the Special Victims Bureau, which is composed of the Sex Crimes Unit, the Child Abuse Unit, the Domestic Violence Unit, and the Elder Abuse Unit.  Her work has earned her the endorsement of the National District Attorneys Association, the National Center for Women and Policing, New York City Police Commissioner Ray Kelly, and current and former district attorneys including former Manhattan District Attorney Robert Morganthau. 

Ms. Halligan also has devoted much of her professional life to serving disadvantaged families.  Throughout her career, particularly during her stint in private practice, she has engaged in pro bono work and community service projects that focus on families with the greatest needs, including by serving on the Board of Directors of the Center for Law and Economic Justice and by representing victims of Hurricanes Katrina and Rita who were threatened with losing their housing assistance. 

“Ms. Halligan’s nomination is historic,” Aron said.  “If confirmed she will be only the sixth female judge in the 120-year history of the D.C. Circuit.  We urge the full Senate to hold floor votes Ms. Halligan and the other nominees without delay.”

Tomorrow on this Blog, a story that illustrates why all of these judgeships are so important.

WHY JUDGES MATTER: NLRB, leadership of consumer agency threatened by DC Court of Appeals ruling

The issue is arcane, but the consequences are huge.  It’s a case study of how the Senate Republican minority’s abuse of the filibuster to block appointees, and the failure to fill vacancies on what is often described as the nation’s second highest court combined to produce potentially disastrous consequences.

 

Hundreds of decisions by the National Labor Relations Board (NLRB) could be invalidated and the entire agency effectively shut down if a ruling by three Republican appointees to the U.S. Court of Appeals for the District of Columbia Circuit is upheld by the U.S. Supreme Court.

The decision involves three appointees to the NLRB, a referee for disputes in the American workplace whose power extends beyond unionized workplaces.  The five-member NLRB board can’t function without at least three vacancies filled.  But for months Senate Republicans blocked three nominations by President Obama. 

Finally, the president resorted to what is known as a “recess appointment” – naming his nominees to the NLRB while the Senate was away for the holidays.  But Republicans used a technicality to try to pretend the Senate still was in session: Every few days someone would stop by the near-empty Senate chamber, declare the Senate “in session” and then promptly declare the session over.

This sham was good enough for three Republican-appointed D.C. Circuit judges. Ignoring longstanding practice and precedent, they ruled that the recess appointments were unconstitutional.  Moreover, the ruling could invalidate all the decisions made by those three recess appointees over the last year.

But wait, there’s more: Since one seat on the NLRB already is vacant that means, if the decision is upheld, the NLRB will have only one member.  As so long as it doesn’t have 3 members, it can’t function at all. 

Richard Cordray

And still more: Richard Corday, who heads the Consumer Financial Protection Board, was appointed the same way.  That happened after Senate Republicans first made clear they would never allow a vote on President Obama’s first choice, Elizabeth Warren (a decision they may now regret, given the job she ultimately got instead) and then stalled the nomination of Cordray.  A separate case is challenging the Cordray appointment.

None of this should come as any surprise.  Last October, Pulitzer-prize winner Steven Pearlstein, then a columnist for The Washington Post, blasted the D.C. Circuit for its extreme right-wing activism.

He wrote:

…[D]ysfunctional government has become the strategic goal of the radical fringe that has taken over the Republican party. After all, a government that can’t accomplish anything is a government that nobody will like, nobody will pay for and nobody will want to work for. For tea party conservatives, what could be better than that?

Nowhere has this strategy been pursued with more fervor, or more success, than the U.S. Court of Appeals for the District of Columbia Circuit, where a new breed of activist judges are waging a determined and largely successful war on federal regulatory agencies.

It didn’t have to be this way.  As Pearlstein also pointed out:

The prospect that some balance might be restored to the nation’s second-most powerful court has long since faded after Senate Republicans successfully filibustered every nominee put forward by President Obama for the three vacant seats on the D.C. Circuit.

That was then.  Soon there will be  four vacant seats.

Here’s why that matters: The 11-member D.C. Circuit currently has eight active members—five Republican appointees and three Democratic appointees—and, as noted above, three vacancies (the fourth vacancy will occur on February 12^th).  If the president had been able to nominate and confirm three people to fill the vacancies, the Court would have had a Democratic majority.  That means either the panel decision could have been different or the entire eleven-member court may have been more likely to review the panel's decision – with a six-to-five majority appointed by Democratic presidents.  But since that didn’t happen, Pearlstein wrote, there was only one other alternative:

The only hope now is that Chief Judge David Sentelle and some of the court’s more intellectually honest conservatives will move to rein in the judicial radicals before they turn the courts into just another dysfunctional branch of a dysfunctional government.

Guess who wrote the decision in the NLRB case: David Sentelle.

Press Release: AFJ Condemns Senate Failure to Confirm Caitlin Halligan

Washington, D.C., December 6, 2011—Alliance for Justice President Nan Aron issued the following statement on the failure to end the Republican filibuster of the nomination of Caitlin Halligan to a seat on the U.S. Court of Appeals for the D.C. Circuit:

Today’s vote by Republicans to filibuster the nomination of Caitlin Halligan has shattered any pretense that the judicial confirmation process is being conducted in a rational or honest manner. Ms. Halligan’s record of achievement in public service and private practice is impeccable and there is no conceivable justification for denying her a final vote. The notion advanced by her opponents that she is somehow out of the mainstream of legal thought or holds extreme views is ludicrous and reflects a breathtaking level of dishonesty and hypocrisy. Today’s vote, combined with a three-year record of unrelenting obstruction, demonstrates that Senate Republicans have abandoned fairness and responsibility and are forcing the woefully understaffed federal judiciary to pay the price for their increasingly shrill and destructive partisan games. It is clear beyond any doubt that the 2005 agreement forbidding filibusters except under “extraordinary circumstances” is now dead and that Republicans have broken their promise to the American people to deal with judicial nominations in a fair and principled way. Today’s vote is a tragedy for the country, for the judiciary, for Senate tradition, and for Caitlin Halligan, who has been unjustly denied an opportunity to serve our nation.

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For the most accurate, up-to-date information on the judicial selection process, visit the Alliance for Justice’s Judicial Selection page.