Monday, December 12, 2011

Republicans Call Off Truce on Judicial Nominees

      Hypocrisy was aptly defined by the French essayist La Rochefoucauld as the homage that vice renders to virtue. Twice last week, Senate Republicans hypocritically paid homage to the principle of executive branch authority by blocking nominations by President Obama to an important federal court and a new consumer protection agency.
      The GOP’s hypocrisy was especially blatant in denying an up-or-down vote to Caitlin Halligan, Obama’s choice to fill one of three existing vacancies on the U.S. Court of Appeals for the District of Columbia Circuit. Back when a Republican was in the White House, GOP senators were aghast that Democrats, then in the minority, were blocking votes on President Bush’s nominees for federal judgeships.
      Feelings ran so high that the then Senate majority leader, Tennessee’s Bill Frist, threatened to rule filibusters out of order, an action so antithetical to Senate traditions that it was labeled “the nuclear option.” Senatorial peace was restored only after a bipartisan group of seven Democrats and seven Republicans — the so-called Gang of 14 — pledged, in writing, not to support filibusters of judicial nominees in the future except in the event of “extraordinary circumstances.”
      The agreement paved the way for confirmation of three of Bush’s nominees for federal appeals courts: Janice Rogers Brown, Priscilla Owens, and William Pryor. Each gained confirmation by votes that fell short of the 60 that would have been needed to cut off debate. But the Democrats’ forbearance then has not been returned in kind now that they hold power in the Senate and Republicans are in the minority.
      Earlier this year, Senate Republicans succeeded in blocking a vote on Obama’s nomination of University of California-Berkeley law professor Goodwin Liu to the Ninth U.S. Circuit Court of Appeals. Liu, a rising academic star with unabashedly progressive views, would have become the only Asian American on a court with jurisdiction over Hawaii, California and other states with substantial Asian American populations. The vote to cut off debate was 52-43, strictly along party lines with one Republican (Utah’s Orrin Hatch) voting present and one GOP senator absent (Alaska’s Lisa Murkowski).
      Senators divided almost the same way in the 54-45 vote on Tuesday (Dec. 6) to try to cut off debate on Halligan’s nomination to the D.C. Circuit. Only Murkowski broke ranks to vote with 53 Democrats in favor of allowing Halligan’s nomination to come to a vote. Hatch again voted present. In both votes, all four of the Gang of 14 Republicans still serving in the Senate voted to support the filibusters despite their previous commitments: Arizona’s John McCain, South Carolina’s Lindsey Graham and Maine’s Susan Collins and Olympia Snowe.
      Ian Milhiser of the liberal group Center for American Progress underscored the Republicans’ hypocrisy by pulling up back-then quotes from Graham and 13 other GOP senators who voted to support the filibuster against Halligan despite their principled opposition to the practice earlier. One of the best examples came from Tennessee’s Lamar Alexander: “I would never filibuster any president’s judicial nominee. Period.” Kentucky’s Mitch McConnell, now the Senate minority leader, said back then that allowing filibusters against judicial nominees would amount to amending the Constitution to require a supermajority vote for confirmation.
      The case against Halligan fell far short of whatever meaning could reasonably be given to the admittedly ambiguous phrase “extraordinary circumstances.” Halligan was criticized primarily for her role, while solicitor general for the state of New York, in supporting a lawsuit seeking to hold gun manufacturers liable for gun homicides and street crime. The second count against her consisted of a brief she filed in behalf of a Guantanamo detainee challenging the president’s power to detain suspected terrorists without full judicial review.
      As a make-weight, Graham and some other Republicans said the D.C. Circuit’s caseload does not require filling any of the existing three vacancies. Graham pointedly noted that Democrats made the same argument in opposing Bush’s nominees for the D.C. Circuit. Whatever the caseload figures may be, the Republicans’ stance clearly has more to do with political payback than judicial administration.
      Just two days after Halligan’s nomination was buried, Senate Republicans followed by thwarting a vote on Obama’s nomination of Robert Cordray to head the new Consumer Financial Protection Bureau. The 53-45 vote to cut off debate, seven short of the 60 votes needed, again was almost completely along party lines, with only one GOP senator — Massachusetts’ Scott Brown — breaking ranks and Maine’s Olympia Snowe voting present.
      Without contesting Cordray’s qualifications, Republicans have vowed to oppose any nominee for the new agency without substantial changes to the new law that created it in the wake of the financial crisis. Democrats counter that Republicans should not hold the agency’s leadership hostage to legislative changes that they lack the votes to enact.
      Judicial politics has been a hardball game now for three decades, ever since President Ronald Reagan began selecting nominees recruited by conservative activists precisely for their conservative views. To Republicans, the Estrada filibuster raised the stakes by blocking a vote for the first time on a nominee with clear majority support in the chamber. When the Gang of 14 produced their agreement to abjure filibusters in the future, Hatch presciently described the accord as a truce, but not a ceasefire. With the Liu and Halligan nominations, Republicans apparently have signaled that the truce is called off.

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