A constitutional crisis: time for ‘nuclear winter’ in the U.S. Senate

Posted by AzBlueMeanie:

In blocking Judge Robert L. Wilkins’s nomination on Monday, Senate Tea-Publicans denied President Obama his third pick in recent weeks to fill one of the vacancies on the D.C. Circuit Court of Appeals, second in importance to the U.S. Supreme Court. Another Obama Court Nominee Blocked by G.O.P.:

NukeSenate Republicans on Monday blocked President Obama’s third consecutive nominee to the country’s most powerful and prestigious appeals court and insisted they would not back down, inflaming a bitter debate over a president’s right to shape the judiciary.

By a vote of 53 to 38, the Senate failed to break a filibuster of Robert L. Wilkins, a federal judge who was nominated to fill one of three vacancies on the United States Court of Appeals for the District of Columbia Circuit, falling seven votes short of the 60 needed. Two Republicans — Lisa Murkowski of Alaska and Susan Collins of Maine — voted with the Democrats.

The impasse over Mr. Wilkins followed Republican blockades of two other candidates for the court since Oct. 31. Unlike previous fights over judicial nominees, the dispute is not as much about the judges’ individual political leanings as it is about the overall ideological makeup of the court. Republicans have raised few objections to the three candidates’ qualifications or legal positions.

Rather, Republicans are seeking to prevent Mr. Obama from filling any of the three existing vacancies on the 11-seat court, fearing that he will alter its conservative tilt. The court has immense political importance because it often rules on questions involving White House and federal agency policy.

Democrats accused Republicans of exercising a nakedly political double standard for confirming presidential nominees.

“Appointing judges to fill vacant judicial seats is not court-packing,” Senator Harry Reid of Nevada, the Democratic majority leader, said Monday. “It’s a president’s right as well as his duty.”

After the vote, Mr. Obama issued a statement saying he was being held to an unfair standard. “Four of my predecessor’s six nominees to the D.C. Circuit were confirmed,” he said. “Four of my five nominees to this court have been obstructed.”

Mr. Obama added, “The American people and our judicial system deserve better.” 

Got that? Tea-Publicans do not have any objections to the qualifications, competence or character of these judicial nominees. Their objection is a hyper-partisan sense of entitlement to the D.C. Circuit Court of Appeals, that it is reserved for conservative activist judges. This is not what the Constitution contemplates by the "advice and consent of the Senate" for Article III judicial nominations.

The current GOPropaganda line is that "the court does not have a caseload large enough to merit filling the vacancies" (this bullshit has been debunked). Let's be clear: if this was a Tea-Publican president, these vacancies would be filled. Tea-Publicans are holding these vacancies open in the hope that they can win the presidency in 2016 (they would still have to control the Senate, an unlikely proposition given that Democrats are expected to have only 10 seats up for election, and Republicans are expected to have 24 seats up for election in 2016).

Never before in the history of the United States has a political party engaged in such rank hyper-partisanship over the federal judiciary. This is the latest iteration of "nullification," a long-discredited theory that these Neo-Confederate insurrectionist Tea-Publicans are reviving in their anti-government zeal. The Senate filibuster rules permit this abuse by a Tea-Publican tyranny of the minority. The anti-democratic filibuster rules need to be changed.

Jonathan Bernstein wrote yesterday, Here comes the showdown on the filibuster (again):

As the Washington Post editorialized, this is “unfair, unwise and bad for the functioning of the government.”

It also should be unsustainable. Whether Senate Democrats like the filibuster or not in the abstract (and Senate Democrats are split among groups who would like to preserve it as is, eliminate it or find some middle ground), they simply cannot allow election nullification through blocking the constitutional presidential power of nominating judges.

Democrats have been patient about imposing changes to the Senate rules by majority vote, a patience not matched by Republicans, who have obliterated the remaining norms regarding using filibusters selectively. Democrats are correct to do so, especially with judges; they remember that they were glad to have the option of blocking the George W. Bush nominees they strongly opposed and want to retain that ability for the next time that Republicans have the White House and a Senate majority. But what’s happening here is entirely different, and it calls for the strongest possible response.

Democrats have the ability to stop it. If Mitch McConnell and the Republicans don’t back down, Democrats should act. The best solution here is for Republicans to back down, allowing the filibuster to survive. But if they won’t, then Harry Reid and the Democrats really have no choice. For them to allow this to continue would be a betrayal of the millions of voters who elected them and twice put Barack Obama in the White House. Allowing nullification just isn’t an option. They’ll have to threaten to eliminate all nomination filibusters — and, if necessary, they’ll have to go through with it.

Steve Benen wrote yesterday, A process at the breaking point:

As was the case with last week’s filibuster, it’s important to recognize that the Republican obstructionism had nothing to do with Wilkins, his ideology, his temperament, or his background. On the contrary, just the opposite is true – senators in both parties agreed that Wilkins is a fine nominee.

The problem, rather, is that a minority of the Senate has decided to block every nominee for the D.C. Circuit, regardless of his or her qualifications, because Americans had the audacity to re-elect a Democratic president. Once there’s a Republican in the White House, Republican senators will presumably agree to lift the blockade.

This is important because it has simply never happened before in American history. Senators in both parties have, in a variety of instances, blocked judicial nominees they considered offensive or extreme for one reason or another, but there is nothing in the American tradition that says a minority of the Senate can maintain vacancies on an important federal bench – indefinitely – because they feel like it.

Indeed, perhaps the single most bizarre example of obstructionism run amok is Sen. John McCain (R-Ariz.), who said just a few months ago that each of Obama’s D.C. Circuit nominees deserve a vote in the Senate. McCain then proceeded to join the filibuster of the nominees he said shouldn’t be filibustered.

After yesterday’s obstructionism, Senate Democratic leaders began “taking the temperature of their caucus on whether to finally go ‘nuclear’ and change the Senate rules,” and by any fair measure, Republicans haven’t left the majority party with much of a choice.

Let’s make this plain: if Senate Democrats don’t force a confrontation over this, they will, for the first time in the institution’s history, have allowed a minority of the Senate to hijack the judicial nominating process without cause.

The status quo is, for lack of a better phrase, a simmering constitutional crisis of sorts. Either Democrats act or a precedent will be set.

* * *

Last week, Sen. Pat Leahy (D-Vt.), the Senate Pro Tem and chairman of the Judiciary Committee, said, “I think we’re at a point where there will have to be a rules change.” Senate Majority Whip Dick Durbin (D-Ill.) added soon after, “I’ve said it before and I’ll say it again. There comes a tipping point, and I’m afraid we’ve reached that tipping point.”

If they were waiting to see what happened with Wilkins, now they know.

Yesterday, Sen. Jeff Merkley (D-Ore.), a leading proponent of Senate reforms, asked, “When will we say enough is enough?”

* * *

Senate Republicans, for all intents and purposes, have broken the judicial confirmation process. They know they’re engaged in tactics with no precedent in the American tradition; they know it’s obstructionism on an unsustainable scale; they know it’s wholly at odds with every commitment they made during the Bush/Cheney era; and they just don’t give a darn.

Whether the Democratic majority is prepared to simply tolerate this crisis and allow the process to be hijacked for the indefinite future is unclear.

Senator Elizabeth Warren (D-MA) delivered a speech in the Senate last week that laid out the case for ending this Tea-Publican tyranny of the minority and restoring democratic constitutional principles in the U.S. Senate by the "constitutional option" (what media villagers prefer to call the "nuclear option"). It's time for "nuclear winter" in the U.S. Senate to restore democatic constitutional principles.

One response to “A constitutional crisis: time for ‘nuclear winter’ in the U.S. Senate

  1. Frances Perkins

    I recall the Republicreeps, when they were in power under Bush, crying for for an “up or down vote.” This should be the same. I don’t think Americans would deny the very rare filibuster on some extreme or totally unqualified nominee. But on every nominee, for certain jobs, UP OR DOWN VOTE!, or go nuke!