Opinion

The Great Debate

Not ‘court-packing,’ GOP’s aim is ‘court-shrinking’

The party that brought you “death panels” and “socialized medicine” has rolled out another term — carefully selected, like the others, for its power to freak people out. “Court-packing” now joins a Republican rogue’s gallery of poll-tested epithets.

Of course, “court-packing” is not a new term, and its menacing overtone is not a recent discovery. “There is a good deal of prejudice against ‘packing the court,’” observed Homer Cummings, the U.S. attorney general, in 1936, on the eve of President Franklin D. Roosevelt’s failed attempt to do just that — to tip the Supreme Court’s balance by increasing the number of seats and filling them with New Dealers. Cummings, who sold the idea to FDR, hoped Americans would not be “frightened by a phrase.”

But they were. And today’s GOP is betting they still are. Hence the resort to a term that has no valid application to the matter at hand: President Barack Obama’s determination to fill the three vacant seats on the U.S. Court of Appeals for the D.C. Circuit.

Republicans have been sounding the alarm since the spring, with increasing volume. Senator Ted Cruz (R-Tx.), among others, accuses Obama of harboring “a desire to pack the court.” The Wall Street Journal editorial board is also invoking the p-word — insisting they are shocked, shocked that the president would think of exercising his power under Article II, Section 2 of the Constitution to appoint judges.

Both House and Senate Republicans have now introduced bills to stop Obama by simply eliminating the seats he wishes to fill. They are seeking to reduce the size of the D.C. Circuit from 11 judges to eight. This court is a target for conservatives for two reasons: First, because of its primary role in regulatory and national security cases, and second, because another Obama appointment (never mind three) would put the court’s Republican appointees in the minority.

Why the U.S. must lead on Disabilities Treaty

In an HIV clinic in Africa, a man born deaf holds a single sheet of paper with a plus sign. He looks for help, but no one at the clinic speaks sign language. In fact, the staff doesn’t seem interested in helping him at all.

He returns to his plus sign. These are his test results. They dictate he should start antiretroviral drugs immediately and should also make changes in his sexual habits. But he doesn’t know this. He leaves the clinic concluding that the plus sign must mean he’s okay, that everything is just fine.

This scenario seems shocking. Yet it continues to play out around the world. The Senate will tackle this issue at the November 5th hearings on the Convention on the Rights of Persons with Disabilities (CRPD) — the Disabilities Treaty.

Opposing Obamacare: GOP’s defining issue

After the French Revolution, the statesman and diplomat Talleyrand said of the Bourbon kings, “They learned nothing and they forgot nothing.” The same might be said of congressional Republicans after their disastrous government shutdown adventure.

Obamacare survives. That itself is something of a miracle. Look at how many near-death experiences it has been through. The loss of Senator Edward Kennedy (D-Mass.) in 2009 deprived Democrats of the majority they needed to end a Senate filibuster. They managed to circumvent the filibuster by applying a controversial rule that allowed the bill to pass with a simple majority.

Republicans won control of the House of Representatives in the 2010 midterm election by promising to repeal Obamacare. The House has now voted 46 times — 46 times! — to repeal Obamacare, only to see the votes ignored by the Democratic Senate.

Tea Party zealots hold the public debate hostage

This year’s contrived budget crisis is headed to its climax, as the date for defaulting on the nation’s debt approaches.

Washington’s budget debates are dizzying and incomprehensible. But at stake is what kind of country we will have. House Republican Tea Party zealots, backed by well-funded right-wing lobbies, continue to manufacture budget crises. They want to alarm Americans into accepting cuts in basic security — in food stamps, and home heating, in Social Security or Medicare benefits — that would otherwise be utterly unacceptable.

Lost in the uproar is any reasoned discussion of the real strategies we need to make this economy work for working people. It is vital that the president and the Democrats in Congress end this macabre dance and make it clear to people just what the stakes actually are. The measure of any compromise deal is whether it will crush the hostage-takers.

GOP’s path to Senate control is through Louisiana, Alaska

For Republicans to win control of the Senate next year, top officials in both parties say, all paths to a majority have to go through Alaska and Louisiana. In addition to being crucial in determining Senate control, the Democratic incumbents in these two battleground states share the same political and policy vulnerabilities.

Louisiana Senator Mary Landrieu won reelection by 52 percent in the 2008 Democratic wave buoyed by President Barack Obama’s victory. Alaska Senator Mark Begich, even with those same Obama coattails and an assist from Justice Department officials putting their thumbs on the scale in his favor, was barely able to knock off longtime Republican incumbent Ted Stevens — 47.7 percent to 46.5 percent.

Since these Democratic wins, however, Republicans in Louisiana and Alaska have completely taken over the state governments — legislature and governors’ mansion. Today Democrats don’t hold a single statewide post in Louisiana. They couldn’t even find a credible contender to put up against Governor Bobby Jindal, who cruised to re-election without breaking a sweat in his 2011 landslide.

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.

A history (and future) of Congressional polarization

As the 112th Congress came to a close last year, bipartisanship made a rare showing. The U.S. inched its way up to the fiscal cliff, but Congress voted to yank the country back, with 85 House Republicans voting not to reinstate the Bush tax cuts for individuals who earn more than $400,000. It was a rare moment of bipartisanship, however begrudging, for a Congress that has steadily become more polarized in the past 30 years.

Using a statistical analysis of some 35 million individual campaign contributions from 1980 through 2012, we assembled Congress’ polarization ratings. Rather than base legislators’ ideology on how they vote, we instead infer ideology scores from the patterns of contributions made by their supporters. In deciding which candidates to support, the typical donor is strongly influenced by his ideological views. As a result, they give almost exclusively to like-minded candidates with similar voting records. The massive quantities of data on contribution records (with over $6 billion dollars contributed to federal elections during the 2012 election cycle alone) make for an exercise in big-data and politics.

When you put all the data together, Congress’ modern history of polarization looks something like this:

Asserting the Senate’s power

A three-judge panel on the D.C. Circuit Court of Appeals last week unanimously ruled that President Barack Obama violated the Constitution when he made recess appointments to the National Labor Relations Board (NLRB) last year.

The court agreed with the argument outlined in an amicus brief submitted by Senate Majority Leader Mitch McConnell (R-Ky.), myself and 40 of our Republican colleagues. We argued that the Constitution does not empower the president to determine when the Senate is in recess.

The court  ruled that any other interpretation of the Constitution would give “the president free rein to appoint his desired nominees at any time he pleases, whether that time be a weekend, lunch or even when the Senate is in session and he is merely displeased with its inaction.”

Why Congress can’t deliberate

The new Congress next year will likely inherit high-stakes standoffs over many complicated issues, from financial credibility to immigration. Our elected leaders must be able to make difficult trade-offs and craft policies that reflect the best expert knowledge.

In its current dysfunctional state, however, Congress cannot have nuanced deliberations or make knowledgeable judgments. One big reason is that it no longer has the capacity to produce unbiased public-interest information.

In the mid-1990s the mechanisms that produced the information and statistics that Congress had relied on to produce bills were virtually disassembled. Under House Speaker Newt Gingrich, many support panels that supplied information and analysis to Congress members were disbanded or curtailed.

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.

  •