ACSBlog

by Jeremy Leaming

Sen. Mitch McConnell (R-K.Y.), the chamber’s ringleader of obstruction of Obama nominations, particularly judicial ones, is whining about the possibility of Senate action that could hobble an integral tool of obstructionists – the filibuster.

But Senate Majority Leader Harry Reid (R-Nev.) has tried to work with McConnell on this matter before and wound up with a pretty weak deal, one that McConnell would subsequently mock. Earlier in the year the two reached an agreement that was supposed to help move along some of Obama’s nominations to the federal bench, especially those to the U.S. District Courts. Since then, however, Republicans appear ready to scuttle the nominations of Thomas Perez to head the Labor Department and Gina McCarthy to lead the Environmental Protection Agency. For good measure the Senate obstructionists are also seeking to prevent the administration from filling all the vacant seats on the U.S. Court of Appeals for the District of Columbia Circuit and blocking the president’s selections to fill vacancies on the National Labor Relations Board.

In a press statement, Reid signaled he may be ready to push for a majority vote to alter the filibuster to help change the status quo in Congress, which is gridlock. Reid noted, as many others have for some time now, that McConnell and his cohorts have changed the rules of the Senate by demanding supermajority votes to consider legislation and increasingly to kill judicial and executive branch nominations.

Reid said:

Due to Republican obstruction, the de facto threshold for too many nominees to be confirmed has risen from a simple majority to a supermajority of 60 votes. On judicial nominees, Republicans’ obstruction is equally unprecedented. The nonpartisan Congressional Research Service confirms that President Obama is the only president in the last three decades whose highly qualified nominees have been forced to wait more than half a year from nomination to confirmation. There is no reason to delay qualified nominees for so long except delay itself, and it is little wonder we have a judicial vacancy crisis in this country.

McConnell took to the Senate floor, TPM”s Sahil Kapur reports, to claim that Reid’s talk of reforming the filibuster amounted to intimidation. “Their view is that you had better confirm the people we want, when we want them, or we’ll break the rules of the Senate to change to the rules so you can’t stop us,” he said.

It’s of course McConnell and his gang who have changed the rules. Their Party failed to win enough seats to control the Senate and lost a bid to take the White House. So they’re continuing their mission to obstruct, delay and start again. Reid is the one on solid ground here. Senate Republicans and their counterparts in the House of Representatives like things just the way they are.

by Russell Wheeler, Visiting Fellow, Governance Studies, The Brookings Institution

The U.S. Court of Appeals for the District of Columbia Circuit (CA-DC for short) has more vacancies, and a greater proportion of vacancies to judgeships, than any other federal appellate court. Appointees of President George W. Bush or his father hold four of the court’s 11 judgeships, and appointees of President Clinton hold three. Six senior judges, all but one Republican appointees, are on the draw but able to take reduced caseloads.

Senate Republicans and their press allies believe the status quo is basically fine. They refused to allow a vote on one Obama nominee, Caitlin Halligan, bowing to National Rifle Association claims that she’s too liberal to serve in the federal judiciary. They appear willing to allow a vote on a second Obama nominee, the very capable Srikanth Srinivasan, who has served in both the Bush and Obama Justice Departments.

But, they say, Srinivasan is enough. Why? The reason most commonly offered is that CA-DC doesn’t need more judges because it has a light caseload. Ranking Senate Judiciary Committee member Charles Grassley said, correctly, that its 108 filings per judgeship in 2012 was lowest in the country.

Others respond, just as correctly, that raw filings hardly tell the whole story of a court’s workload. It’s impossible to compare accurately the workloads of the 13 courts of appeals because the federal judiciary has developed no accurate way to “weight” different case types in those courts—as compared to the fairly sophisticated method for weighting district court caseloads.

But there is no doubt that CA-DC has a heavy docket of appeals from decisions of federal administrative agencies, appeals that do not benefit from initial review in the district courts. Former CA-DC chief judge Patricia Wald recently described them as “the most complex, time-consuming, labyrinthine disputes over regulations. . .cases [that] require thousands of hours of preparation by the judges, often consuming days of argument, involving hundreds of parties and interveners, and necessitating dozens of briefs and thousands of pages of record — all of which culminates in lengthy, technically intricate legal opinions.”