Republican Obstructionists Wholesale Blocking Of Federal Nominations

The Senate was originally created as a kind of counterpart to the British House of Lords, with unelected, state-appointed members, whose purpose was to check the passions of "the mob" (i.e.- the elected House of Representatives). I've long advocated the abolishment of this anachronistic roadblock to democracy and progress, with its arcane, frat-like rules and traditions. My advocacy means nothing at all since the Constitution stipulates that not even a Constitutional Amendment can deprive the smallest of states from equal representation to the largest. Wikipedia has a decent explanation of how and why the Senate was created, the Connecticut Compromise.

Currently a reactionary gaggle of heavily (and easily) bribed senators from a handful of states with very small populations-- Mike Enzi of Wyoming (532,668), Kent Conrad of North Dakota (641,481), Tom Carper of Delaware (873,092), Max Baucus of Montana (967,440), Olympia Snowe of Maine (1,316,456), Blanche Lincoln of Arkansas (2,855,390) and Chuck Grassley of Iowa (3,002,555) are frustrating the hopes of the whole country for meaningful health care reform. Senators favoring reform-- like Boxer and Feinstein from California (36,756,666), Schumer and Gillibrand from New York (19,490,297), Durbin and Burriss from Illinois (12,901,563)-- have no recourse to counter senators who represent not significant numbers of voters but wealthy special interests.

The Senate, and not the House, has exclusive power to approve, or disapprove, of executive department appointments. Currently an obstructionist agenda from the Republican Party seeking to undermine the Democratic president is blocking virtually all of his appointments to the judicial branch. Since taking office Obama has nominated 18 people o serve on the federal bench. Except for the high profile Supreme Court appointment (Sonia Sotomayor), the obstructionist Republicans have managed to bottle up all of the president's nominations to the judiciary as well as to executive departments like the Civil Rights Division of the Department of Justice (Tom Perez) and the Office of Legal Counsel for the same Department (Dawn Johnsen). Weak and incompetent Democratic leadership in the Senate from a Nevada senator battling for his own political survival has enabled the Republican minority-- along with a small handful of reactionary Democrats like Blanche Lincoln and Ben Nelson-- to frustrate the new administration.

This week, the Leadership Conference on Civil Rights, on behalf of 45 civil rights organizations representing millions of people, sent a letter to Minority Leader Mitch McConnell urging him to cut the crap and stop obstructing and bottling up nominations.

On behalf of the undersigned organizations, we seek your cooperation in eliminating the troubling backlog of judicial and executive branch nominees that exists to date in the 111th Congress. The obstruction of many of President Obama's nominees through filibuster threats and anonymous "holds" is hindering the important work of our judicial and executive branches of government and threatening any prospect of bipartisan cooperation on many pressing national issues important to all Americans.

Since his inauguration, President Obama has nominated 18 individuals to serve as Article III judges. Yet, only one judge in addition to Justice Sonia Sotomayor has been confirmed. While we recognize the time and energy required to confirm a Supreme Court nominee, it is time for the Senate to move forward without delay on the growing backlog of lower court nominees who have been cleared by the Judiciary Committee. President Obama has worked with the Senate on a bipartisan basis to select extraordinarily well-qualified judicial nominees who could easily be confirmed by widespread margins and begin serving the public, if brought to a vote before the full Senate.

In addition, a significant number of nominees to positions in the President's Administration, including high-level positions in the Department of Justice, have not yet been confirmed. Obstructing important executive branch nominees through filibusters or anonymous holds frustrates the legitimate business of government. This obstruction grows increasingly problematic as we approach the ninth month of President Obama's administration.

We are particularly troubled, for example, by the refusal to allow Professor Dawn Johnsen's nomination to the Office of Legal Counsel (OLC) within the Department of Justice to receive an up-or-down vote before the full Senate. Professor Johnsen has already served with distinction in the OLC, and is undoubtedly well-qualified for the position. Her nomination was approved by the Senate Judiciary Committee in March. The OLC plays a highly important role within the Administration, and the failure to confirm the President's nominee to lead the office prevents the OLC from providing crucial legal advice on a wide range of issues currently confronting our nation.

Similarly, Senate confirmation of Thomas E. Perez as Assistant Attorney General for the Department of Justice's Civil Rights Division (CRT), our nation's chief enforcer of civil rights laws and policies, has been delayed for nearly three months. Mr. Perez has an outstanding record of public service both inside and outside the CRT, including significant management responsibilities. Because the CRT currently faces severe challenges, including the need to ameliorate the loss of a significant number of career staff, to correct for troubling past hiring practices, and to remedy past failures to fully enforce federal civil rights laws, a prompt vote on Mr. Perez's confirmation is essential.

We write to you at a time when our nation faces numerous challenges that cry out for bipartisan cooperation, including major economic challenges and continued international threats. We strongly believe that the obstruction of these nominations will poison the political atmosphere, needlessly heighten partisan tensions, and make it far more difficult for the federal government to serve the public interest in any respect.

For these reasons, we strongly urge you to work with Senate Majority Leader Harry Reid to move forward with President Obama's stalled nominees to the judiciary and the executive branch. Thank you for your consideration.

The Republican response to this and similar efforts is basically that Obama is not a legitimate president because he was born in Kenya or Indonesia or Hawaii and that they have their marching orders from Party Leader Rush Limbaugh to undermine him and make him fail. They scream "socialism" about every single effort he makes in every single field and it will take a reaction against obstructionism from the voters in 2010 to make much of anything happen.

Back to the appointments for a moment. Jeffrey Toobin has a thorough look at the Obama Administration's appointment process in the current issue of the New Yorker, Bench Press, well worth the read. An excerpt:

The power to nominate federal judges is one of the great prizes of any Presidency, and Obama assumed office at a propitious moment. After Democrats won control of the Senate in 2006, the new chairman of the Judiciary Committee, Patrick Leahy, of Vermont, significantly slowed down the confirmation process for George W. Bush’s appointees to the federal appeals courts. In addition, many federal judges appointed by President Clinton were waiting for the election of a Democratic President in order to resign. Now vacancies abound. Just eight months into his first term, Obama already has the chance to nominate judges for twenty-one seats on the federal appellate bench—more than ten per cent of the hundred and seventy-nine judges on those courts. At least half a dozen more seats should open in the next few months. There are five vacancies on the Fourth Circuit alone; just by filling those seats, Obama can convert the Fourth Circuit, which has long been known as one of the most conservative courts in the country, into one with a majority of Democratic appointees. On the federal district courts, there are seventy-two vacancies, also about ten per cent of the total; home-state senators of the President’s party generally take the lead in selecting nominees for these seats, but Obama will have influence in these choices as well. Seven appeals and ten district judges have been named so far. George W. Bush, in the first eight months of his Presidency, nominated fifty-two. But Obama, unlike Bush in his first year, has had the opportunity to place his first Justice on the Supreme Court, Sonia Sotomayor—and her confirmation has opened up another seat on the Second Circuit court of appeals. Justice John Paul Stevens, who is eighty-nine, has hired only one law clerk for the next Supreme Court term, so a second Obama appointment to the Court may be imminent as well.

“The unifying quality that we are looking for is excellence, but also diversity, and diversity in the broadest sense of the word,” another Administration official said. “We are looking for experiential diversity, not just race and gender. We want people who are not the usual suspects, not just judges and prosecutors but public defenders and lawyers in private practice.” Yet [David] Hamilton and Sotomayor are the usual suspects-- both sitting judges, who had already been confirmed by the Senate. Of Obama’s seven nominees to the circuit courts, six are federal district-court judges. The group includes Gerard Lynch, a former Columbia Law School professor and New York federal prosecutor, and Andre Davis, who was nominated to the Fourth Circuit by Bill Clinton. (At the time, Republicans blocked any vote on Davis.) Two of the seven are African-American; two are women; all but one are in their fifties. (None are openly gay.) The one non-judge is Jane Stranch, who has represented labor unions and other clients at a Nashville law firm and is nominated for the Sixth Circuit. They are conventional, qualified, and undramatic choices, who were named, at least in part, because they were seen as likely to be quickly confirmed.

...Republicans in the Senate have not allowed a vote on any of the other nominees, either. So far, the only Obama nominee who has been confirmed to a lifetime federal judgeship is Sotomayor. The stalemate provides a revealing glimpse of the environment in Washington. Obama advisers (and Democratic Senate sources) aver that all the nominees, even Hamilton, will be confirmed eventually, but contrary to the President’s early hope the struggle for his judges is likely to be long and contentious.

“The President did not set a good example when he was in the Senate,” Orrin Hatch, the senior Republican senator from Utah, told me, pointing to Obama’s votes against the confirmation of John G. Roberts, Jr., and Samuel A. Alito, Jr., to the Supreme Court. “You have to be a partisan ideologue not to support Roberts,” Hatch said. “There is a really big push on by partisan Republicans to use the same things that they did against us.” Hatch himself, who had voted for Ruth Bader Ginsburg, Stephen G. Breyer, and every other Supreme Court nominee in his Senate career, voted against Sotomayor. (The vote for her confirmation was sixty-eight to thirty-one.)

There is a certain irony in this, because Obama has long sought to define himself as something other than a traditional legal liberal. Starting about fifty years ago, after Earl Warren became Chief Justice, the concept of legal liberalism developed a clear meaning: a belief in what came to be called judicial activism. Liberals believed that the Constitution should be read expansively, and that the Supreme Court should recognize newly defined rights—the right, say, to attend an integrated public school, or, later, the right to choose abortion. Conservatives in this era believed in what they called judicial restraint, which suggested that courts should refrain from overruling decisions made by the elected parts of the government. Obama appears to be trying to move away from these old categories, which have, in any case, become scrambled in their meaning. Both sides now claim to embrace restraint and eschew activism.

Obama and his judge-pickers define their choices with the same post-partisan vocabulary that the President uses with most issues: excellence, competence, common sense. And so far Republicans have regarded Obama’s claims in this realm with the same skepticism that they have displayed for his arguments on the economy and health care. Still, this is not just a replay of the usual ideological debate. Obama’s choice of judges reflects ferment in the world of legal liberalism, which is tied ever more closely to the fate of Democrats in the executive and legislative branches of government. Liberals who once saw judges as the lone protectors of constitutional rights are now placing their hopes on elected politicians like Obama. At its core, Obama’s jurisprudence may rest less on any legal theory or nomenclature than on a more primal political skill-- the ability to keep winning elections.

So the Republican obstructionists' vow to filibuster all of his nominees has thrown a wrench into the works. It will be up to the voters in swing states like Missouri, Florida, Kentucky, New Hampshire, North Carolina, and Ohio in 2010-- all states with Senate elections-- to decide if they want to move the country forward by further delegitimizing the Republican Party and defeating avowed obstructionists like Roy Blunt (MO), Richard Burr (NC), Kelly Ayotte (NH), Marco Rubio (FL), Trey Grayson (KY), and Rob Portman (OH).