Democrats Continue to Filibuster Those They Support

Senate Democrats continue to force cloture votes on President Trump’s nominees that they support! When cloture is invoked, it ends filibusters. However, it still allows a “legislative day” of delay to “invoke” and allows up to 30 additional hours of debate. In other words each time Democrats force a cloture vote, they delay the Senate from working on the problems of the country or confirming the people who are nominated to work for the country.

It is important to note this is not an effort to defeat a nominee.  It is an effort to undermine and delay the Senate and hurt the government.  As Senator Mitch McConnell described yesterday:

Six well-qualified nominees are currently before the Senate. They’re awaiting the full consideration they clearly deserve. Their nominations have been vetted. Their expertise is well-known. Their positions sit empty, waiting to be filled. The American people are waiting for their president to have his full team, and for their federal government to be appropriately staffed.

“Now, if last evening’s vote to advance Claria Horn Boom’s district court nomination were any indication, we’d be in for a productive week. Ninety-six of our colleagues voted in support. Ninety-six. With such broad bipartisan support, you might think that filing cloture should not have been necessary in the first place. With nominees as uncontroversial as these, you might think the Senate should roll quickly through them and move on to other business.

“But unfortunately, for more than a year now, our Democratic friends used the partisan playbook to delay and obstruct even the least-controversial nominees. So unless we can reach the kind of bipartisan agreement that was once the norm, and process noncontroversial nominees more promptly, we’re left with no choice but to proceed the hard way. And that’s just what we’ve done. Facing historic obstruction, Republicans have confirmed ambitious reformers to crucial posts where fresh ideas were long overdue.

Leader McConnell is not letting the Democrats get away with it.  He is keeping the Senate in session this week until six well qualified nominees are confirmed.  Typical of these nominees is Patrick Pizzella, who has been waiting since June 20, 2017, to be confirmed as the Deputy Secretary of Labor.  Leader McConnell added: 

Now, I’ve already stated the Senate will remain in session as long as it takes to clear this slate of nominees. Following the confirmation of Ms. Boom, we’ll move to consideration of John Ring to serve on the National Labor Relations Board.  After Mr. Ring come nominees to the Department of Labor, the EPA, and two more nominees to fill district court vacancies. All vetted. All qualified. All sitting here in the Senate.

Shame on Senate Democrats and thank you Leader McConnell for your commitment to confirm nominees. 

RNLA Thanks Senator Orrin Hatch

Today, Senator Orrin Hatch announced his retirement at the end of this term. 

RNLA Executive Director Michael Thielen said: “Orrin Hatch has long has been a great friend of the RNLA since our founding in 1985.  It was Senator Hatch who first said: ‘If you are a lawyer and you are a Republican, you should be a member of the Republican National Lawyers Association.’  Thank you Senator Hatch.” 

RNLA President Elliot Berke stated: “We thank Senator Hatch for his tremendous service to our nation. He's a Senator's senator and a man of great character. We wish him all good wishes for the future.”  

RNLA Board Member Frank Salinger said: "In his 41 years of Senate service, Orrin Hatch championed the rule of law and legal issues ranging from confirming conservative federal judges to intellectual property. He is the longtime friend of RNLA and always made himself available for our events and to meet our members. Having represented Utah companies for many years, I know first hand that—even when he worked on national issues— he never forgot his constituents throughout his home state’s 29 counties. Orrin went to Washington, DC but he never forgot Utah." 

At The Republican Lawyer blog, we frequently cited Senator Hatch. 

“In a recent judicial confirmation hearing, a nominee was asked, explicitly, “do you consider yourself an orthodox Catholic?” That same nominee was told that, upon review of her record, “the conclusion one draws is that the dogma lives loudly within you.” Statements like that can be taken only as the imposition of some kind of religious test for holding office. Nothing could be more repugnant to our values of religious freedom and liberty.”  12/4/2017: Senator Hatch on Religious Liberty

The majority should know the judicial filibuster facts because, after all, they pioneered the use of filibusters to defeat judicial nominees who would otherwise be confirmed. Why are they engaging in filibuster fraud? One possibility is that the majority wants to cover up the fact that President Obama has consistently lagged behind his predecessors in making judicial nominations.  The Senate, after all, cannot confirm nominations that do not exist.  6/19/2013: Hatch Calls Out Senate Democrats for Filibuster Fraud

[On the Scalia Supreme Court vacancy] Democrats have no credibility in lecturing Republicans on how to conduct the current confirmation process. Their recent actions only validate the rationale for waiting. From personal attacks on Republican committee chairmen to coordinated disruptions by professional activists, liberal pressure tactics belie any commitment to keeping politics out of the confirmation process.  Considering a nominee in the midst of a toxic presidential election would be irresponsible. Doing so would only further inject a circus atmosphere into an already politicized confirmation process. Conducting a thoughtful and substantive deliberation after the election is in the best interests of the Senate, the judiciary and the country.  3/28/2016: Sen. Hatch: Let Voter's Decide the Court's Future

Thank you, Senator Hatch.  

Part 2: Top Blog Posts of 2017 - Democrats' Unprecedented Obstructionism

Last Friday, we had the top posts of the year, numbers 10-6.  Today, it is the top 5 posts that unfortunately have a common theme:  Democrats' hyper-partisan obstruction of the Trump Administration.  This is so over the top it would be funny if it was not hurting the governing of our country.   The number one post shows the complete hypocrisy of the Democrats opposition to the Trump Administration.  They are hurting good people for the sake of appeasing their far-left base. 

5.  April 6: “Today, McConnell Ended What Schumer Began with Estrada Filibuster”  Excerpt:

There was much hand wringing over Senator McConnell being forced to invoke the constitutional option today to end the first successful partisan filibuster of a Supreme Court nominee, but partisan filibusters of judicial nominees are not a longstanding Senate tradition.  It began with now-Minority Leader Chuck Schumer's filibuster of Miguel Estrada (who was opposed in large part because he was a conservative Latino).

4.  August 18: “ATL Publishes Vulgar Attack on Former Gorsuch Clerk”  Excerpt:

Perhaps the most telling point in the whole piece is that constitutionalist, textualist, and originalist are just buzzwords used by dumb people, not fully formed, mainstream theories of constitutional and statutory interpretation even adopted by Justice Elena Kagan.  While the crude personal attacks on Mr. Davis are reprehensible, this point shows that what he is really being attacked for is being a conservative who respects the Constitution.  We thank Mr. Davis for his service to our country, even in the face of such vulgar, inappropriate criticism.

3.  November 8: “Sen. Sasse Dismantles ABA as Neutral Arbiter of Judicial Qualifications”  Excerpt:

I'm referring specifically to the smear campaign of the ABA against Steve Grasz, a qualified public servant who has been nominated by the President to the Eighth Circuit Court of Appeals. . . . First, we should discuss the two people who interviewed Mr. Grasz and recognize that, unfortunately, they are blatant partisans with a sad track record of hackery. Second, the ABA Is trying to paint Mr. Grasz as an extremist simply because he did his job as the Chief Deputy Attorney General of Nebraska and defended Nebraskans and Nebraska laws that wanted to outlaw the most barbaric of abortion practices — partial-birth abortion. Third, we should talk about the obvious bigotry of cultural liberals evident in their interview process of Mr. Grasz when they asked him repeated questions about nonlegal matters that had nothing to do with the claims of competence of the ABA. 

2.  April 25: “Democrats Continue to Oppose, Delay and Obstruct Non-Controversial, Qualified Nominees”  Excerpt:

He has the support of Senate Minority Leader Chuck Schumer and was an Obama appointee.  He is the longest serving U.S. Attorney in the nation.  Yet, Rod J. Rosenstein has waited almost three months to finally get a chance to be confirmed as Deputy U.S. Attorney General, the number 2 position in the Department of Justice.  Cloture had to be invoked as six Democrats opposed him even getting an up or down vote!

1.    1. February 9: “Senator Nelson Shows His True Feelings after Bowing to Extremist Pressure” (regarding Senator Nelson’s applause following Attorney General Sessions’ confirmation vote) Excerpt:

The Democrats have become totally beholden to extremist elements in their own party. Never has that been more clear than on their recent vote on the confirmation of their colleague Senator Jeff Sessions to be Attorney General.  All Democrats--except Senator Joe Manchin of West Virginia--voted against him.  Yet, many Democrat Senators can be seen applauding Sessions' confirmation as Attorney General. 

The Democrats have taken obstruction and partisanship to a new level in their efforts to undermine the American government. 

The High Price of Democrat Obstruction

Senator James Lankford went to the Senate floor and laid out the case against the unprecedented Democrat Obstruction of President Trump’s nominees.  We are not talking high profile nominees like Supreme Court Justices or Cabinet Secretaries, but basically all the ones appointed by the President that need to be confirmed by the Senate.

First, Senator Lankford laid out the problem:

Now, what's happened? Remember I argued that we had 13, 14, 15 people held up in cloture in a year. This year so far there have been 64 nominations held up in a cloture vote. That is 64 days in the Senate we could do nothing else but sit here in waiting. Now it wasn't for debate. It may sound like it's being held for 30 hours of debate during that time period. Debate normally didn't happen. Most of the time this chamber was just empty. It was just 30 hours were demanded to shut down the body as a whole, 64 in this year. What has brought us? It's brought us more animosity. It's brought us more division and more frustration.

This is not just some petty political game.  It has the effect of undermining the government.

In the meantime, we've got agencies all over this town that can't answer a question because the bureaucrats are waiting on a Senate-confirmed individual to be able to lead that, to be the secretary, under secretary, deputy secretary, whatever the task may be, the counsel for that particular agency. So they sit and wait. So our constituents that are trying to get a permit in certain places or trying to get an answer or trying to get disaster relief, all that they can say in the office is we can't do that until we get a Senate-confirmed position in this place, but we can't get Senate confirmed positions in place until my democratic colleagues will actually allow individuals to actually come up and be debated on.

This dysfunction of the Senate affects the entire country and Senator Lankford calls for bipartisan efforts in the Senate to fix these problems which are damaging the entire nation.

I believe the Senate is moving gridlock from here on this Capitol Hill all across the city and across the nation. The reason for that is how we do nominations and the length of time on nominations. It’s time for the Senate to fix the Senate’s rules.

People Are Missing the Senate's Huge and Important Success on Judges

There is a lot of criticism of Senate leadership and most of it is highly debatable and arguably undeserved.  What is not debatable is that Senate leadership has done a great job confirming President Trump’s judicial nominees.  We detailed Senate Judiciary Chairman Chuck Grassley’s efforts to end the abuse of the blue slip process.  As CNBC noted in an important article over the Thanksgiving break entitled "Congress has handed Trump a historic presidential victory":

Grassley correctly noted that Democrats were now trying to use the blue slips tradition to replace the filibuster, and he's having none of that. As recently as last month, the Democrats and much of the news media's punditry were expecting Grassley, who is no fan of the president, to keep the blue slip tradition in place. But Grassley gave Trump this very special gift instead.

Not only has Grassley delivered in the Judiciary Committee but Senate Majority Leader Mitch McConnell and others have on the Senate floor:

Consider that as of November 3rd, 13 Trump nominees to the courts have been confirmed this year. The big name is Supreme Court Associate Justice Neil Gorsuch, but we also have eight new federal appeals court judges, and four new U.S. district court judges. President Trump has now already surpassed the last four presidents' records for first-year judicial confirmations. And he's even tied President Ronald Reagan number of appeals court confirmations in year one.

It must be noted that this was all set in motion by the most partisan of Senate leaders, Democrat Harry Reid:

And that brings us to the Democrat who provided the initial generous source of President Trump's solid triumph: Former Senate Majority Leader, and Democrat, Harry Reid. Reid is a major reason this good fortune has befallen President Trump because Reid was the one who killed the filibuster rule for judicial nominees in 2013. And when he killed it, it was gone for good.

Critics of the Senate and President Trump can’t say this is some Republican abuse of power; it is merely building on what Reid did.  Smart political operatives are now starting to realizing the impact and long-term importance of the focus on judicial nominations of Chairman Grassley, Leader McConnell, and President Trump:

But real history is being made in the courts all thanks to a bad bet made by Senator Reid and remarkable cooperation between the Trump team, Senator Grassley, and Republican Senate Majority Leader Mitch McConnell. While the fights with other senators like Flake et al may grab headlines, these judicial confirmations will have a much bigger impact.

Judicial Nominations: Democrats Have Nothing But Character Attacks

RNLA Executive Director Michael Thielen wrote today in the Daily Caller about how Senate Democrats are attacking and delaying President Trump's excellent judicial nominees:

Thirty years ago, the Senate rejected Judge Robert Bork for the Supreme Court after a series of unprecedented and often untrue attacks by Democrats on one of the nation’s foremost legal scholars.  Today, the Democrats and their allies are arguably treating judicial nominees worse.  For while the attacks were one-sided, the vote to defeat Judge Bork was at least bipartisan.  Today, Democrats and their allies make no such efforts to actually defeat nominees they do not like; instead, they attempt to obstruct and sully the character of nominees.

But Majority Leader Mitch McConnell and Senate Judiciary Committee Chairman Chuck Grassley have expertly led the Senate and are not allowing the Democrats to prevail:

Fortunately, Senate Judiciary Committee Chairman Chuck Grassley does not have unlimited patience with Democrats’ games and obstruction.  Thanks to the leadership of Chairman Grassley, 18 nominees are now on the floor awaiting a vote.  And the need is great.  There are still over 140 vacancies on the federal bench, with 64 classified as judicial emergencies. 

Majority Leader Mitch McConnell has also tired of Senate Democrats’ partisanship and has made the confirmation of judges a priority, with four Circuit Court nominees to be confirmed by the end of this week.  As of publication, the new Judge Barrett of the Seventh Circuit and Judge Larsen of the Sixth Circuit have just been confirmed. 

Despite the Democrats’ obstruction and delays, Chairman Grassley and Leader McConnell are keeping the process moving, understanding how important these principled nominees are to the American people.  Democrats have forced cloture votes on all confirmed judicial nominees from President Trump, compared to none at this point in the Obama, George W. Bush, Clinton, or Reagan administrations.  Of course, these cloture votes are simply a delaying tactic, since the Democrats abolished the filibuster for judicial nominations lower than Supreme Court in 2013.

Mr. Thielen provides examples from several currently pending and recently confirmed nominees, including Scott Palk, just confirmed for the Western District of Oklahoma; David Stras, nominated for the Eighth Circuit; Ryan Bounds, nominated for the Ninth Circuit; Amy Barrett, just confirmed to the Seventh Circuit; and Steven Grasz, nominated to the Eighth Circuit.  Democrats have baselessly attacked all of them, including Palk who was first nominated to the seat by President Obama, but Leader McConnell and Chairman Grassley are working to ensure that all these superb nominees are confirmed.

Today, McConnell Ended What Schumer Began with Estrada Filibuster

There was much hand wringing over Senator McConnell being forced to invoke the constitutional option today to end the first successful partisan filibuster of a Supreme Court nominee, but partisan filibusters of judicial nominees are not a longstanding Senate tradition.  It began with now-Minority Leader Chuck Schumer's filibuster of Miguel Estrada (who was opposed in large part because he was a conservative Latino):

In a world of instant gratification that too often rewards boastful rhetoric over definitive accomplishments, Mitch McConnell stands out for his patience. The Senate majority leader expends political capital with ruthless efficiency, using it only when it can accomplish precisely what he intends. McConnell doesn’t start many fights; he finishes them. 

As the Senate moves toward confirmation of Neil Gorsuch, President Donald Trump’s nominee for the Supreme Court, that is exactly what is happening: McConnell is ending a fight that a young senator named Chuck Schumer started nearly 15 years ago by rallying the first-ever partisan filibuster of a nominee to the D.C. Circuit Court: Miguel Estrada. Previously, the Senate’s “advise and consent” role was vigorously deployed with fierce partisan tensions but ultimately settled with simple up-or-down majority votes. . . .  

Predictably, the misuse of the filibuster led to an existential threat to the filibuster itself. To confirm President Bush’s embattled judicial nominees, then-Majority Leader Bill Frist threatened the “nuclear option,” that is, changing Senate rules to ban the use of the filibuster in certain instances. A bipartisan group of senators known as the “gang of 14” de-escalated the situation by voting to confirm most of the filibustered nominees, staving off such a fundamental change to Senate procedure. . . .

In the most ironic plot twist, the man who started it all returns to the stage in the final scene. . . . Nearly 15 years after Schumer started this fight, he will have a front-row seat when McConnell finishes it. A uniquely perfect way for this story to end. Regrettable, perhaps; inevitable, to be sure.

It is important to remember that what happened today on the Senate floor did not abolish the legislative filibuster.  While also not enshrined in the Constitution, the legislative filibuster has a much longer tradition and has always been treated differently by senators.  

So did Leader McConnell "blow up the Senate" today?  No.  He simply completed a process started by then-Majority Leader Harry Reid in 2013 to restore the Senate to standard operating procedure prior to 2002.

Not Equal: Not One Current Republican Senator Has Ever Filibustered a Supreme Court Nominee

Make no mistake about it, there is only one party at fault for the likely so-called nuclear option in the United States Senate to end potential filibusters for Supreme Court nominees.  As Leader McConnell stated:

Later today, due to the threat of an unprecedented partisan filibuster, I’ll file cloture on the nomination of Judge Neil Gorsuch to be an Associate Justice of the U.S. Supreme Court.  It should be upsetting to everyone that our colleagues across the aisle have brought the Senate to this new low, and on such an impressive nominee with such broad bipartisan support. 

Judge Gorsuch is independent, he’s fair, he’s got one of the most impressive resumes we’ve ever seen, and he’s earned the highest possible rating from the group the Democratic Leader calls the "gold standard" for evaluating judicial nominations. 

No one seriously disputes his sterling credentials to serve on the Court.  And yet, in the Judiciary Committee, Democrats just withheld support for him.  On the floor, Democrats say they’ll launch a partisan filibuster against him — something Republicans have never done. No one in the Senate Republican Conference has ever voted to filibuster a Supreme Court nominee. Not one Republican has ever done that.

Later today, colleagues will continue to debate the nomination of Judge Gorsuch. They’ll discuss how completely unprecedented it would be for Democrats to actually follow through on this filibuster threat — to actually block an up-or-down vote for this nominee even though a bipartisan majority of the Senate supports his nomination — and what the negative consequences would be for the Senate if they succeed. 

I’ll be listening with interest.  I hope Senators in both parties will listen as well.  

Notice, that “No one in the Senate Republican Conference has ever voted to filibuster a Supreme Court nominee.”  Democrats have done this before to Justice Samuel Alito, including many current Senate Members and Democrat Party leaders such as then-Senators Biden, Clinton, and Obama.  Bolded below, among the 25 who voted to filibuster Alito, are current Senate Members:

Bayh (D-IN) Biden (D-DE) Boxer (D-CA) Clinton (D-NY) Dayton (D-MN) Dodd (D-CT) Durbin (D-IL) Feingold (D-WI) Feinstein (D-CA) Jeffords (I-VT) Kennedy (D-MA) Kerry (D-MA) Lautenberg (D-NJ) Leahy (D-VT) Levin (D-MI) Menendez (D-NJ) Mikulski (D-MD) Murray (D-WA) Obama (D-IL) Reed (D-RI) Reid (D-NV) Sarbanes (D-MD) Schumer (D-NY) Stabenow (D-MI) Wyden (D-OR)

By contrast, not one single Republican voted to filibuster Justices Sotomayor or Kagan.  The two sides are not equal.  Democrats are the ones who are forcing the rule change and “nuking” the Senate.  Republicans are standing up for the people who spoke in the election in 2016.  Thank you to Leader McConnell, Republicans and principled Democrats such as Joe Manchin, Heidi Heitkamp, and Joe Donnelly.  

Bipartisan Support in Senate for Gorsuch Confirmation

Today, two Democratic senators announced support not only for a vote for cloture on Judge Neil Gorsuch's nomination to the Supreme Court but also for his confirmation.  

Senator Joe Manchin from West Virginia said:

After considering his record, watching his testimony in front of the Judiciary Committee and meeting with him twice, I will vote to confirm him to be the ninth justice on the Supreme Court. . . . Throughout Judge Gorsuch’s career, he has come to his legal rulings objectively, through the letter of the law rather than through his own opinion. 

During his time on the bench Judge Gorsuch has received praise from his colleagues who have been appointed by both Democrats and Republicans.  He has been consistently rated as a well-qualified jurist, the highest rating a jurist can receive, and I have found him to be an honest and thoughtful man.  I hold no illusions that I will agree with every decision Judge Gorsuch may issue in the future, but I have not found any reasons why this jurist should not be a Supreme Court Justice.

Senator Heidi Heitkamp from North Dakota said:

After doing my due diligence by meeting with Judge Gorsuch and reviewing his record and testimony before the Senate Judiciary Committee, I've decided to vote in favor of his confirmation.  He has a record as a balanced, meticulous, and well respected jurist who understands the rule of law.  He has unique and critical experience with tribal sovereignty, Indian law, and public lands issues in the west, and has received the endorsement of numerous tribes and major Native American organizations.  During our meeting and at his hearing, he reinforced the importance of a judiciary that remains independent of the executive and legislative branches of government - and that acts as a proper check and balance on the other two branches of government.

Other Democratic senators demonstrated some further cracks in the hardline Trump resistance movement today.  Senator Claire McCaskill of Missouri recognized that the Democrats' gridlock strategy for the Supreme Court is likely to backfire, and Senator Ben Cardin said that the Democrats should not filibuster Gorsuch.

Senators Heitkamp and Manchin are up for reelection in 2018 in states that voted for Donald Trump in 2016, and perhaps these senators have recognized the political consequences of voting against an eminently qualified judge like Judge Gorsuch.  Perhaps they have decided to listen to their constituents instead of the radical progressive special interest groups that increasingly control the Democratic Party.  Or perhaps, tellingly, they considered his extensive judicial record and made their decision on that basis, unlike their Democratic colleagues who have not bothered to review his record.  

Whatever the reason, we applaud Senators Heitkamp and Manchin for questioning the blind obstruction of the current Democratic Party and for supporting an extremely well-qualified and well-respected nominee for the Supreme Court.

Senate Tradition Requires a Majority Vote for SCOTUS

In the face of a promised filibuster by the Democrats of Judge Gorsuch's nomination to the Supreme Court, Republican senators have spoken out strongly against the use of the filibuster on Supreme Court nominees and have indicated their support if Leader McConnell is forced to exercise the constitutional option or "Reid Rule" on the Gorsuch nomination.

Senator Lamar Alexander noted earlier today that he has consistently voted for cloture on presidential nominees even when he voted against confirming them:

[W]hat the Democrats are proposing to do next week, quite apart from the fact that Judge Gorsuch is one of the most eminently qualified people we have seen come around in a long time, they're flying in the face of 230 years of tradition in the Senate by insisting that a presidential nominee to the Supreme Court require more than 51 votes to be confirmed. Now, I look very quickly back at my own votes. None of us are perfect, and I'm not asking for any merit badges, but I wonder where the Democrats are who are trying to do at least what I was trying to do when President Obama was there. And I found at least ten times where I voted for cloture, voted to cut off debate for controversial nominees with whom I disagreed with, and then I voted against them when the vote was 51. . . . [W]here are the Democrats looking to vote like that, to preserve the Senate's 230-year tradition of approving presidential nominees by a majority vote? I think this is a terrible precedent, not justified, and I'm sorry to see things heading in this direction. 

Senator Alexander gave extended remarks on the history and use of the filibuster in the Senate yesterday:

Throughout the Senate's history, approval of even the most controversial presidential nominations have required only a majority vote. . . . In fact, Senate rules have always allowed senators the option to filibuster to death a presidential nomination, yet it has almost never happened. . . . Filibustering a presidential nomination has always been treated differently than filibustering a legislative matter. . . . No one has ever disputed our right in the Senate, regardless of who was in charge, to use our constitutional duty of advice and consent to delay and examine, sometimes cause nominations to be withdrawn or even to defeat nominees by a majority vote. 

But as we approach a vote next week on Neil Gorsuch on the floor of the Senate, it is useful to remember that the tradition of the United States Senate has been to treat legislative matters one way and presidential nominations a different way. Filibustered to death legislation, yes. Filibustered to death presidential nominations, no. Should the Neil Gorsuch nomination come to the floor soon, as i believe it will, overwhelming Senate tradition requires that whether to approve it should be decided by a majority vote and there should be no attempt by the minority to filibuster the nomination, especially of such a qualified man, to death. 

Such long-serving, institutionalist senators as Senator Hatch, Senator Shelby, and Senator Graham have also supported confirming Judge Gorsuch even if faced with a Democrat filibuster, while they lament what the Democrats' forcing the Republicans to exercise the constitutional option means for the future of the Senate.

RNLA thanks these senators and the other Republican senators willing to uphold 230 years of Senate tradition by supporting an up-or-down vote for Judge Gorsuch.

There Is No 60-Vote Standard for Supreme Court Nominees

In an effort to justify their unprecedented and baseless opposition to Judge Gorsuch's nomination for the Supreme Court, some Democrats have claimed that there is a 60-vote baseline for confirming Supreme Court nominees in the Senate.  This is to avoid the charge that they are filibustering Judge Gorsuch, which will likely prompt Leader McConnell to exercise the constitutional option or "Reid Rule" and change the Senate rules on Supreme Court nominations.  

The problem with this 60-vote standard is, of course, that it does not exist:

FactCheck.org: “A confirmation vote for a Supreme Court nominee requires only a simple majority, or 51 votes.” (“Sanders On SCOTUS Filibuster, Factcheck.org, 2/6/17) 

The Washington Post’s Fact Checker: “Democrats are being slippery with their language. Sixty votes is not ‘a standard’ for Supreme Court confirmations, as two of the current justices on the court did not meet that supposed standard.” (“Senate Democrats’ Misleading Language On A 60-Vote ‘Standard’ For Supreme Court Nominees,” The Washington Post’s Fact Checker, 2/2/17) . . . 

No Democrats now serving in the Senate have EVER insisted that a Democrat President’s SCOTUS nominee meet a 60-vote standard. 

FactCheck.org: “…that was not the case for the two Supreme Court justices nominated by Obama and approved by the Senate. . . . (“Sanders On SCOTUS Filibuster, Factcheck.org, 2/6/2017) . . . The nomination of Sonia Sotomayor to be an Associate Justice of the Supreme Court of the United States did NOT require 60 votes.(PN506 Sonia Sotomayor, Roll Call Vote #262, 8/6/2009) . . .  [and the] nomination of Elena Kagan to be an Associate Justice of the Supreme Court of the United States did NOT require 60 votes.(PN1768 Elena Kagan, Roll Call Vote #229, 8/25/2010)

Indeed, both Justice Clarence Thomas and Justice Samuel Alito were confirmed with fewer than 60 votes in favor.  The Democrats will continue touting fallacious liberal talking points supplied by radical progressive activists as unfounded reasons to oppose Judge Gorsuch, but this 60-vote threshold claim really should be laid to rest.

The Far Left Is Running, and Ruining, the Democrat Party

For years, newspapers have written about the “Tea Party” running and ruining the Republican Party.  While those stories were completely overblown, there seems to be some truth to the far left ruining the Democrat Party by demanding nonsensical things against the wishes of the majority of Democrats.

Let’s take as one example: potential obstruction of President Trump’s qualified and popular Supreme Court Nominee Neil Gorsuch.  On the far left there are people like Al Sharpton demanding obstruction indefinitely.

 “They can stall as long as they want till their man gets in the White House,” Sharpton continued.

On the other side, you have the number two Democrat in the Senate Dick Durbin stating:

 “The base wants me to reject him out of hand,” said Senator Richard J. Durbin of Illinois, the body’s No. 2 Democrat, who will meet with Judge Gorsuch on Tuesday. “I don’t think that serves the country well.”

So individual senators are stuck between doing what is right for their country and their constituents versus appeasing their far-left base.  A great example is Senator Sheehan of New Hampshire. 

Last week, Shaheen said, "Everybody I've talked to agrees he should get a hearing and an up-or-down vote."

As the ninth Democrat committed to bringing Gorsuch's nomination to a vote, Shaheen would have guaranteed that Democrats would not be able to sustain a filibuster. White House press secretary Sean Spicer welcomed her decision and hopes more Democrats would join her.

So Shaheen flip-flopped. She tweeted to Spicer that she only meant a cloture vote.

. . .

That's just not true. An "up-or-down vote" in the Senate means a vote to confirm the nominee, not a procedural vote to close debate. Shaheen knows better. She just hopes the rest of us don't.

Senator Claire McCaskill of Missouri did a similar tweet and now she is using a more extreme tactic in an effort to get the base off her back. 

“I’m not talking about the Supreme Court nominee at all, in any way,” Ms. McCaskill said. “I just don’t think it’s a good idea.”

If the Senators ignore their constituencies and cave to the extremists in their party, Republicans have a strong case to end the 60-vote filibuster.  As the Fix’s Aaron Blake writes in the Washington Post:

And as I've written, an unprecedented Supreme Court filibuster against a clearly 
qualified and likable nominee would just give Republicans a good excuse to do away more of the filibuster. 

Whether the Democrats have given into liberal extremists or will they listen to their constituents is up in the air but, as Roll Call writes, one thing is for sure:

If Democrats have a cohesive strategy, they’re hiding it.

Debating the Filibuster

There is a legitimate debate on the Senate Filibuster going on within Republican ranks.   Should Republicans end the Senate Filibuster which required 60 votes on legislation?  Two months again Congressman Lamar Smith wrote a letter to Senate Leadership asking for just that:

Our request to eliminate the filibuster for some votes simply underscores that in a democracy the majority should decide. The super-majority now required to advance legislation is 60 votes, which is not serving our country well. We are under no illusion that the elimination of the Senate filibuster for some votes will guarantee the passage of legislation much less its enactment into law. However, a move by the Senate to a majority vote that can approve some legislation would make it much easier for Congress to advance meaningful solutions to challenges our country faces.  

56 other Republican members of the House joined Congressman Smith.  Rep. Smith also said at the time:

A bad Iran nuclear deal merits the use of the Senate’s so-called nuclear option. I respect the separate rules and role of the Senate and do not advocate this change for every small matter. But for the sake of American national security interests we must place every available option on the table to stop this bad Iran deal. Had a simple majority rule been in place this week, both chambers of Congress could have voiced their strong disapproval of the Iran deal. It is time to send a strong signal to this administration that it can no longer disregard the will of the American people and their representatives in Congress.

Longtime staffer to the House, Senate and the George W. Bush White House Bill Wichterman argues the other side:

The long-term damage that abandoning the filibuster would do to our form of government would be substantial. The Framers of the Constitution intentionally hobbled Congress. For the sake of preserving maximum freedom, they wanted to make it difficult to pass legislation. Consistent with that notion, the filibuster protects the rights of the minority and requires at least a minimum level of bipartisanship in legislating. (The passage of Obamacare on a strictly party-line basis was possible only because President Obama briefly had a rare supermajority — it is the only time in our history that a major entitlement program has been enacted on a party-line vote, and Obamacare will forever be controversial because of that.) . . .

The story goes that when Thomas Jefferson, who had been in France during the Constitutional Convention, asked George Washington why they had created the Senate, Washington replied, “We pour our legislation into the senatorial saucer to cool it.” Without the Senate, America would have been one step closer to being a democracy, and not the republic the Founders wanted. James Madison, the Constitution’s principal drafter, derided democracies as “spectacles of turbulence and contention.

Wichterman also points out that:

Conservatives have benefited from the filibuster in the past — using it to stop measures such as the pro-union “card check” and so-called “paycheck fairness,” and to preserve the Bush tax relief when the Democrats tried to rescind it — and we will likely benefit again if we at some point find ourselves in the minority.

It is unfortunate this debate has become necessary do to the extreme partisanship of today’s Democrats.  

Democrats demonstrate shameless hypocrisy in invoking ‘nuclear option’

A decade ago, President Bush nominated super-lawyer Miguel Estrada to sit on the Court of Appeals for the District of Columbia. The Honduran-born Estrada had argued 15 cases before the Supreme Court and had served two presidents, both Republican and Democrat, at the Department of Justice.

But Democrats—worried about the political optics of having a highly qualified Hispanic conservative superstar so close to the Supreme Court—determined to stop his nomination at all costs. Mr. Estrada became the first ever judicial nominee successfully filibustered in the Senate. But he wouldn’t be the last. In total, Democrats would filibuster 10 of George W. Bush’s judicial nominees for the federal bench; five would eventually be confirmed, mostly resulting from the 2005 “Gang of Fourteen” deal.

Now angst-laden Democrats, worried about losing control of the Senate next year, have shattered a decade of uneasy judicial-nominating peace—whereby the Senate confirmed most judicial choices and used the filibuster sparingly.

Senate majority leader Harry Reid (D-NV) evoked the “nuclear option” last week, effectively ending the filibuster and turning the Senate into a mirror image of the majority-rule House for judicial nominations, excepting, supposedly, Supreme Court nominees.

Democrats claim this move will “restore the functionality” of the Senate and cite statistics purporting to show Republican abuse of the procedural tactic. A closer examination, however, shows these assertions to be hypocritical and disingenuous.

First, the Senate was functioning exactly as it should have been. The filibuster has existed in some form or another as a minority protection since the Constitution’s earliest days. Its existence forces compromises and consensus building.

Further, a total of only five of President Obama’s judicial nominees had been filibustered, the exact number as President Bush. And as law professor Jonathan Adler points out, all of these nominations were to the influential DC Circuit and none were considered a judicial emergency. In fact, of the nine such emergencies, only four nominees are currently pending.

And so now Democrats have shamelessly blown up over 200 years of tradition in order to pack the most important circuit court with liberals before they potentially lose the Senate next year. In doing so, they set the stage for a further deterioration and poisoning of the political climate in Washington and have set a precedent they may very well regret four years from now. 

This post was authored by Paul Jossey.   

Did Reid go Nuclear for Nuclear Waste?

By US Senate standards Senate Majority Leader Harry Reid’s maneuver to execute the Nuclear Option and limit debate on judicial nominees by an unprecedented rules change was explosive and sudden.  It happen one afternoon quickly as the Senate was getting out of town for Thanksgiving.  Why did Reid do it so suddenly?

While allowing President Obama’s agenda to pack the DC Circuit was certainly part of it, another reason may have been more personal. 

No, the reason why we locals ought to despise Reid's latest move is because it will facilitate his campaign to block the construction of a safe, permanent repository under Yucca Mountain in his home state of Nevada for dangerous spent fuel from nuclear power plants located in Illinois and elsewhere.

As a freshman senator in 1987, Reid fought against the project with — you guessed it — a filibuster. It proved unsuccessful, but now that he has ascended to majority leader, he's not shy about using his power to block the Yucca project. Mind you, this is the guy who reminds us that Obamacare "is the law," so it must be implemented, even though Congress likewise passed a law designating the Yucca Mountain site as the nation's repository.

Still, Reid and Obama have their hands full. Recently, a three-judge panel of the U.S. Appeals Court in Washington, D.C., ordered, 2-1, the administration to proceed with the project on the grounds that the president can't simply "flout" the law. You might see a pattern here, in that this is the president who thinks he can unilaterally change the Obamacare law by putting off an insurance mandate until after the 2014 elections.

Just a week ago, the court also ruled that if the Energy Department has no plans to proceed with the Yucca project, it then has no good reason to keep collecting the money that we have been paying through our electric bills to build the project. Money that the Obama administration wanted to continue collecting.

So, now comes Reid clearing the way for Obama to pack that court with his appointees. Among the things the court could do that would please Reid is to rehear the Yucca case. With an Obama majority on the court, the case could be reheard en banc, in which the entire bench might overturn the ruling by the three-judge panel.

A former leader on the Nuclear Regulatory Commission wrote me in a private email more about Reid’s decision and background on this issue.

Last Tuesday the DC Circuit issued the third decision in the last eighteen months upending Senator Reid’s campaign to block construction of the national nuclear waste repository in his home state. The unanimous “fee adequacy" decision by three Republican Judge’s on the DC Circuit, followed a decision last summer where the court issued a “Mandamus” ordering the Nuclear Regulatory Commission (NRC) to continue processing the Yucca Mountain license application. That decision had been preceded by one striking down NRC’s gerrymandered “waste confidence” rule, which NRC had issued to paper over the Administration’s cancellation of the Yucca project, and has since halted all nuclear license applications pending NRC submitting a NEPA compliant confidence rule.

In Reid's post vote press conference on the Senate Rules change, he prominently cited the DC Circuit as a central issue in his decision to launch the filibuster “nuclear option.” He commented that a Republican colleague offered to allow the DC Circuit bench to be occupied by a five to four ratio; an offer Reid rejected. What elevated the DC Circuit ahead of all the other contentious issues before the Senate; why else would Reid be talking with a Republican about the DC Circuit, to the extent that the Republican would respond with such an offer? My guess, Tuesday’s decision was the tipping point (Senator Durbin used that term - "we’ve reached the tipping point"). Is Reid attempting to put the court on notice; don’t mess with Yucca Mountain.

So we have a situation where both President Obama and Senate Majority Leader Harry Reid are attempting to pack the DC Circuit to get around a court and laws they do not like. 

The Hypocrisy is Nuclear

Liberal and Democrat hypocrisy on the Senate filibuster is, well, nuclear.  The RNC has this excellent page of videos of then Democrat Senators -- including Obama, Biden, Clinton and, of course Harry Reid -- opposing any changes to the filibuster.  But what is the issue?  National Review explained it this way?

What is the filibuster? It is “a time-honored Senate procedure that prevents a bare majority of senators from running roughshod,” according to our friends on the New York Times editorial page. But that was in 2005, when Republicans frustrated over Democratic filibusters of President George W. Bush’s judicial nominations were (with National Review’s support) considering the so-called nuclear option, the overblown name of which suggests that it is rather more than a change in the Senate’s procedural rules. The Times denounced the Republicans’ “rank hypocrisy” in 2005, as did any number of Democrats. Having reversed themselves at the dictates of convenience, they show themselves to be hypocrites on the matter at hand and also on the subject of hypocrisy — call it hypocrisy squared.

The Democrats here are helping themselves to ill-gotten gains. Using the filibuster and other stalling techniques, they kept judicial vacancies open by closing them to Bush nominees. Miguel Estrada was kept off of the D.C. Court of Appeals by a filibuster; Democrats refused to process John Roberts’s nomination to the same court (to succeed James Buckley, the gentleman previously known in these pages as the sainted junior senator from New York). Later, when Roberts was named to the Supreme Court, Democrats blocked George W. Bush’s nominee for his replacement, Peter D. Keisler. Roberts’s earlier nomination advanced only after Republicans took control of the Senate, something that Harry Reid in his hubris seems to think will never happen again.

As Curt Levey explains despite the Democrats then unprecedented filibusters of Republican nominees:

When Senate Democrats originated the practice of filibustering judicial nominees during George W. Bush’s presidency, Republicans were tempted to use the nuclear option to kill the judicial filibuster and approve nominees with a simple majority vote. But after much debate and hand-wringing, Republicans decided that short-term expediency could not justify destroying the filibuster, a tradition that for centuries made the Senate a more deliberative and bipartisan body than the House.

Republicans may not be faultless on this issue but they are not the hypocrites that the Democrats are.  However, this is a much deeper problem than hypocrisy, it is an effort to pack the courts to protect and enlarge President Obama’s illegal agenda.  The Democrats will soon try to add three completely unnecessary judges to the DC Circuit.

In fact, look at the numbers from the Administrative Office of the U.S. Courts. In 2006, written decisions per active judge had declined by 17 percent since 1997. Since 2006 they have declined another 27 percent. In 2006, the total number of appeals filed had declined by 10 percent since 1997. Since 2006 they have declined another 18 percent. The Administrative Office ranks the twelve circuits using various caseload benchmarks: 2013 is the 17th straight year that the office has ranked the D.C. Circuit last on both appeals being filed and appeals being terminated. There simply is no need for more judges on the D.C. Circuit when those there now do not have enough to do — unless, of course, the aim is to have a bench more sympathetic to rule by presidential diktat, which may be precisely why Senator Reid wants to go nuclear.

Democrats are acting like they will never be in the minority again.  Well not all Democrat Senators.

The Senate’s red-state Democrats, who can no longer hide behind cloture votes and will now be forced to openly support or oppose Obama’s most radical judicial nominees, have a lot to lose from Reid’s brazen move. It is no coincidence that Senator Mark Pryor (D., Ark.), who is facing a tough reelection fight, voted with Republicans today after facing a barrage of ads tying him to Obama’s worst judicial appointments. Opponents of other red-state Democrats running for reelection next year — Landrieu, Hagan, and Begich for example — will surely take note.

I am worried about the consequences of killing the judicial filibuster. But I am also hopeful that it marks a return to the political dynamics of a decade ago, when Karl Rove said, “There’s no doubt in my mind that we won races all throughout the country [on the judges issue].” 

And if the Republicans take the Senate back:

Conservatives have more of a stake than liberals do in the legislative filibuster as a check on the political passions of the moment. But the Democrats who rewrote Senate rules on Thursday should also understand that they have now opened the door to repeal ObamaCare with only 51 votes.

Here’s to hoping Harry Reid and President Obama pay a heavy price in the 2014 elections. 

Obomination: Illegal Appointments Spur The Democrats Need For Harry Reid's "Nuclear Option"

Yesterday, Harry Reid threatened to invoke the so-called nuclear option on the filibuster and change the Senate rules so that only 51 votes were required to overcome a filibuster, rather than 60, unless Republicans agreed to approve several stalled executive branch nominees.

Republican Leader Mitch McConnell stood on the floor yesterday trying to reason with Majority Leader Reid.  However nothing seemed to get through to the Nevada Democrat and he persisted with his stance on the nuclear option. The odd thing about it is that all this posturing by Reid is because three of the nominees were appointed illegally according to the National Labor Relations Board.

Senator McConnell in his speech on the floor yesterday laid out the whole situation:

“So let me sum up once what’s going on here: Senate Democrats are getting ready to do permanent damage to this body to confirm three unconstitutionally appointed nominees by a simple majority vote. If this isn’t the definition of a power grab, I don’t know what is: the President appoints three people unconstitutionally. The second highest court in the land confirms that they were unlawfully appointed. And Senate Democrats want to break the rules of the Senate to confirm them. This isn’t the story that Democrats like to tell, but it’s the truth. This entire phony crisis boils down to these three unlawful nominees.”

Senator McConnell then tried to explain how in fact Senate Republicans were not actually holding anything up and it is just a false narrative being pushed by desperate Democrats frustrated that they can’t get their illegally appointed nominees confirmed.

“The Democrats say we’re holding up others. It’s not true. The truth is, if there’s anyone to blame for holding things up in the Senate, it’s the Democrat Majority. They’re the ones blocking nearly 30 fast-track nominations, many of which Republicans have already agreed to confirm unanimously. And they’re the ones – Democrats – who have yet to schedule votes on the McCarthy and Perez nominations, despite the fact that both of these highly controversial nominees already have enough votes to clear a 60-vote hurdle.”

Senator McConnell then speculated into the real reasons behind this unlawful power grab that will permanently alter the Senate:

“No, the real reason, as I said, that the Far-Left and Big Labor are leaning hard on Democrats to ‘go nuclear’, and that the Majority Leader is about to sacrifice his reputation and this institution to go along with it, is because what they really want is for the Senate to ratify the President’s unconstitutional decision to illegally appoint nominees to the NLRB and the CFPB without the input of the Senate. They know they can’t get that done under the current rules, and they know time isn’t on their side. The second highest court in the land ruled unanimously that President Obama had no power to do what he did. Another court has since concurred, and now the Supreme Court is set to hear the case in just a few months.”

In conclusion Senator McConnell said:

“So this isn’t really a fight over nominees at all. It’s a fight over these illegal, unconstitutional nominees. It’s just laughable to think that Democrats would ever agree to such a thing if we were talking about a Republican President’s unlawful nominees. And it’s equally irrational to think we’d go along with this. In fact, no Senator, regardless of party, should ever consider ceding our Constitutional duties in such a way.

This whole situation comes down to Senate Democrats attempting to jam down the throat of the Senate Republicans, three unconstitutionally appointed nominees who currently are working in their position illegally according to the NLRB. Something needs to be done. The RNLA yesterday wrote a letter to the Republican Leadership in the Senate laying out the potential damage this nuclear option could cause.