Opinion

The Great Debate

Filling judicial vacancies to protect the progressive legacy

What could never happen, finally did.

For more than 30 years the Democratic Senate caucus feebly stood by as Republicans seized control of the federal courts. Now, however, faced with a GOP filibuster of nominees for three vacancies on the appeals court that could determine the fate of most of President Barack Obama’s initiatives, the Democrats have at last responded.

The Democratic Senate majority last month eliminated the 60-vote requirement to end filibusters against presidential nominees to the lower federal courts and the executive branch. With this, they blocked a key element of the GOP’s long-term strategy to overturn the progressive legislative and judicial advances of the past 50 years, and prevent new Democratic initiatives.

Five years into Obama’s tenure, Democratic judicial appointees are still barely even with the number of active Republican judges. There are 93 vacancies, including 37 judicial emergencies as of January 7, with 53 nominations pending. If Obama is to preserve President Franklin D. Roosevelt’s legacy – as well as his own — against the many hostile judges now on the bench, he and the Senate will have to act quickly.

For if the GOP retakes the Senate in November, few of the president’s nominees will be confirmed in 2015-2016. The fate of progressive legislative and regulatory programs will then be in the hands of judges chosen by the next president.

Ronald Reagan’s election in 1980 spearheaded this effort, orchestrated by Reagan counselor Edwin Meese III. Meese sought to dominate the federal courts with a two-pronged strategy: appointing youthful ultraconservatives, who could serve 30 to 40 years on the bench, and keeping liberals and moderates off it.

The Senate after filibuster reform

The Washington Post editorial page led the charge in denouncing the change in Senate filibuster rules engineered by Majority Leader Harry Reid (D-Nev.) and 51 of his Democratic colleagues last Thursday. Many other media voices quickly followed suit.

Reid’s action to allow a simple majority of senators present and voting — not the longstanding 60 — to end debate and proceed to a vote on presidential nominations to executive and judicial offices (except the Supreme Court) has now been widely characterized as a radical step, certain to accelerate the poisonous partisanship in Congress. It will, critics insist, grievously damage the Senate’s comparative advantage over the House of Representatives in fostering bipartisan negotiation and compromise.

The procedure Reid used — setting a new cloture precedent with a simple majority despite a Senate rule requiring a two-thirds majority to change Senate rules — was gutsy. Yet this method has been long available to the Senate. It was even proposed by Republican Majority Leader Bill Frist in 2005 and occasionally used to make minor changes in the filibuster.

Time for Senate compromise on judicial nominees

All eyes were on the Senate last week as Democrats and Republicans reached an agreement to move forward on confirming certain stalled executive branch nominees. This new spirit of compromise was heralded, but before we begin celebrating, it is worth noting that judges were not part of the deal.

Federal trial and appellate courts have alarmingly high vacancy rates, each hovering at 10 percent. In the D.C. Circuit, which is often the final word on everything from environmental regulations to consumer protection rules, three of 11 seats remain vacant. In the trial courts, which resolve the vast majority of federal cases, the average number of vacancies has stayed above 60 for five straight years — the only time that this has happened in more than two decades. Nationwide, there are currently 85 federal judgeships that need to be filled.

One key reason vacancy levels are so high is obstruction in the Senate. Senators have used the filibuster and other procedural mechanisms to slow down the confirmation of even noncontroversial nominees, who were usually confirmed, eventually, with overwhelming approval.

Fighting the filibuster

President Barack Obama recently said Congress should “seize the moment” and summon a majority to push immigration reform. There is only one problem – Congress already did that.

Majorities in the House and Senate backed the DREAM Act, a bill creating a path to citizenship for young illegal immigrants brought to the United States as children, during Obama’s first term. The bill died, however, when a minority of Republicans filibustered it. So even if a new immigration majority materializes next year, Republicans can just filibuster again. Unless Erika Andiola gets her way.

The U.S. District Court for the District of Columbia is due to hear arguments  Dec. 10 in Andiola’s case – an ambitious and erudite lawsuit from Common Cause – which argues that a small band of senators have turned the filibuster into an unconstitutional assault on our democratic government.

After clash, Senate filibuster ends in whimper

Just a few minutes after the Senate failed for a third time in as many days to reach the 60-votes needed to approve a cloture motion on the financial reform bill (failing 56-42), Senate Majority Leader Harry Reid rose to his feet and asked the chamber’s presiding officer:

“Mr President, I now ask unanimous consent the motion to proceed to S 3217 be agreed to.”

After the president officer asked for objections, and heard none, he replied “Without objection, it is so ordered,” according to the Congressional Record.

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