After coming to a “deal” with Republicans in January on the filibuster, supposedly to help move more judicial nominations along (which Republican leader Sen. Mitch McConnell (R-K.Y.) mocked immediately after it was reached), frustrated Senate Democrats are again calling on Majority Leader Harry Reid (D-Nev.) to use the “nuclear option.” This would involve Democratic senators changing procedure to make it a bit more a chore for obstructionist to mount and sustain filibusters.
Since Republicans have upended the traditions of the Senate by requiring supermajority votes for practically everything, the nuclear option may be the strongest option Senate Democrats have for filling the large number of vacancies on the federal bench.
But, even if Democrats employed the nuclear option, there are only nominees for a fraction of the vacant judgeships. Of the 105 current and future openings across the country, only 25 have a nominee. The problem is especially pronounced in states represented by two Republican Senators. In Texas for instance, across all four of the state’s judicial districts there are seven vacancies, yet Texas Senators John Cornyn and Ted Cruz haven’t submitted any names to the White House to fill those posts…at least not recently. In 2010, Cornyn made two recommendations to President Obama, whom, according to Cornyn’s office, the president declined to nominate.
Despite the practically non-existent recommendations for Texas’s judicial vacancies, Senators Cruz and Cornyn supported an amendment to the upcoming immigration bill that would create new judgeships in Texas. When pressed about his failure to recommend anyone for Texas’s existing judicial vacancies, Cornyn responded that it was the president’s job to nominate judges under Article II of the Constitution.
President Obama has come a long way since he declared during his first term that in fighting the so-called war on terror we should safeguard our fundamental values “as vigilantly as we protect our security.”
During his much touted counterterrorism speech at the National Defense University in Washington, Obama tried to return to that lofty rhetoric and even suggested an end would come to the indefinite war on terror. At other times, Obama sounded a bit too much like his predecessor in defending an aggressive approach by the CIA and military to hunt down and kill suspected terrorist overseas by way of drone strikes, even if those actions happen to take out a few American citizens and innocent civilians.
“America’s actions are legal,” Obama said. “We were attacked on 9/11. Within a week, Congress overwhelmingly authorized use of force. Under domestic law, and international law, the United States is at war with al Qaeda, the Taliban, and their associated forces. We are at war with an organization that right now would kill as many Americans as they could if we did not stop them first. So this is a just war – a war waged proportionally, in last resort, and in self-defense.”
Regarding drone strikes, which the Department of Justice finally acknowledged have killed some American citizens, Obama offered an equally staunch defense.
Obama said the “use of drones is heavily constrained. America does not take strikes when we have the ability to capture individual terrorists – our preference is always to detain, interrogate, and prosecute them, America cannot strike wherever we choose – our actions are bound by consultations with partners, and respect for state sovereignty. America does not take strikes to punish individuals – we act against terrorists who pose a continuing and imminent threat to the American people, and when there are no other governments capable of effectively addressing the threat. And before any strike is taken, there must be near-certainty that no civilians will be killed or injured – the highest standard we can set.”
The New York Times reported that the president would supposedly start “shifting control” of the drone strikes from the CIA to the military. But deeper in The Times story, it’s noted that the president “may not explicitly announce the shift in drones from the Central Intelligence Agency in his speech, since the agency’s operations remain formally classified ….” In a piece for Salon, Alex Pareene notes that formal classification, saying, “Maybe the president’s next policy shift can involve the absurd and ridiculous over-classification of everything to do with national security and the actions of our intelligence agencies.”
Reporting for The Times in April, Scott Shane said since the start of the Obama administration, nearly 3,000 people have been killed by the drone strikes. As noted here, McClatchy Newspapers also provided an extensive study, based on U.S. intelligence reports revealed that the drone strikes killed thousands of people in Pakistan and Afghanistan and very few were top al Qaeda operatives.
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.
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.
Some legal scholars and defenders of the indefinite war on terror are coming, mostly with strained arguments, to the defense of the Obama administration’s abuse of freedom of speech. The First Amendment’s speech clause includes protection for a free press, a fairly fundamental way people communicate.
But the Obama administration, which has carried on some of the Bush administration’s counterterrorism tactics, and escalated others, such as the drone war, is obsessed with going after public officials and others suspected of leaking important details of counterterrorism activities and other national security concerns.
The Department of Justice has trolled the phone records of Associated Press reporters in a leak investigation of the AP’s coverage of a foiled terrorist plot in Yemen, and spied on the work of Fox News correspondent James Rosen, in another leak case involving a 2009 story about North Korea’s announcement of launching a nuclear missile. The Washington Post reported that the DOJ “used a security badge to access records to track the reporter’s comings and goings from the State Department… and “traced the timing of his calls with a State Department security adviser suspected of sharing the classified report.” The DOJ, The Post continues, obtained a search warrant for Rosen’s personal e-mails. The DOJ didn’t stop there. It’s arguing that Rosen may have been a co-conspirator in the leak. So now you have the federal government using the Espionage Act to go after alleged leakers, and a journalist, whose job partly entails keeping the public informed about its government.
Gabe Rottman for the ACLU’s Blog of Rights says “never before has the government argued that newsgathering – in this case, asking a source to provide sensitive information – is itself illegal. That would, quite literally, make virtually any question by a reporter implicating classified information a potential felony.”
Last week, when taking questions about his administration’s leak investigation involving secretly culling AP phone records, Obama said no apologies were necessary and provided a tired defense of his administration’s obsession with investigating and prosecuting leaks. Essentially Obama said trust the executive branch and leakers are bad.
But as noted here before war, as George Orwell once wrote has the effect of not meshing terribly well with individual liberties. In Homage to Catalonia about the Spanish Civil War, Orwell wrote, “The fact is that every war suffers a kind of progressive degradation with every month that it continues, because such things as individual liberty and a truthful press are simply not compatible with military efficiency.”
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, whohas 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 Waldrecently describedthem 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.”