Executive power

  • December 6, 2012

    by Jeremy Leaming

    So the Senate is making some progress on confirming judges, but that progress should not mask the reality of a politicized process that has created a high vacancy rate on the federal bench. The 113th Congress has plenty of work on its plate, and it should include fixing the judicial nominations process that has hobbled the judicial system.

    Though the Senate confirmed two district court judges today – Mark Walker and Terrance Berg – both were approved months ago by the Senate Judiciary Committee. But Republican senators have throughout Obama’s first term greatly slowed the confirmation process, even for district court judges. This year, many Republicans claimed that during a presidential election year fewer judges should be confirmed, so the backlog of judges to be confirmed continued to swell, with more than 80 vacancies on the federal bench. Some Republican senators are now claiming that it is very rare for judicial nominations to be considered during lame-duck sessions of Congress. Sen. Chuck Grassley, as noted here recently, lauded his colleagues for allowing floor votes this week on a few of the pending judges.

    But Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.) blasted Republicans for making the wobbly claim that judicial nominations should not be considered during lame-duck sessions. “I urge them to reexamine the false premises for their contentions and I urge the Senate Republican leadership to reassess its damaging tactics,” the senator said in a Dec. 6 statement. “The new precedent they are creating is bad for the Senate, the federal courts, and most importantly, for the American people.”

  • December 5, 2012

    by Jeremy Leaming

    Filibuster reform is needed because Senate Republicans have gone over a cliff of some sort, using the tool in an unprecedented manner to thwart consideration of significant legislation and, of course, scuttle or delay some judicial nominations.

    At People For Blog, Paul nails Sen. Chuck Grassley (R-Iowa) for his wildly misleading blather about the filibuster. Pointing to Grassley’s Dec. 3 statement on supposedly “setting the record straight” on consideration of judicial nominations during lame-duck sessions, Paul notes that the senator avoided the “topic completely,” and instead crowed about his party’s generosity for voting on at least one nominee during the lame-duck Congress. Grassley claimed in his statement that it is rare for the Senate to confirm judges during lame-duck sessions in presidential election years. “Republicans have been more than fair to this President and his judicial nominations,” Grassley’s statement reads.

    Beyond misleading, Grassley’s statement is disingenuous. Senate Republicans have been anything but generous to President Obama. Instead they have used the threat of filibuster and other delaying tactics to slow the pace of confirmations. Their actions have led to a federal bench with more than 80 vacancies, many of them considered judicial emergencies. (See JudicialNominations.org for more on the crisis surrounding the federal courts.)  

    The blockade of judges, as Paul notes, has also created “a huge backlog” of nominees to confirm. This week the Senate has confirmed two of the 19 nominations left pending when it recessed in August for campaigning. The Senate confirmed Paul Grimm, for a seat on the district court in Maryland and Michael P. Shea for a district court seat in Connecticut. Both nominees cleared the Senate Judiciary Committee months ago. That means up-or-down votes on those nominees and the 17 others in a functioning Senate should have occurred months ago. Republicans, however, may have wanted to stall those nominations in hopes that their party would capture the White House and fill the vacancies with right-wing judges.

  • November 28, 2012

    by Jeremy Leaming

    While lawmakers in Washington are consumed with reaching a budget deal, avoiding the so-called fiscal cliff, the president -- also engaged in the budget battle -- is nonetheless moving ahead on other fronts, such as trying to fill vacancies on the federal bench, which spiked during his first term largely because of Sen. Mitch McConnell’s obstructionist ways.

    The president is also continuing his efforts to diversify a bench that is still dominated by white men. Among the president’s recent nominations is Nitza I. Quiñones Alejandro for a seat on the U.S. District Court for the Eastern District of Pennsylvania. If confirmed she would be the “first openly gay Hispanic woman to serve on the bench,” LGBTQ Nation reports. The president’s efforts to create a more representative federal bench contrasts with House Republican leaders who were unable or unwilling to select a woman for the chamber’s major committees, instead,  as noted by The Huffington Post’s Jennifer Bendery, all the new committee chairs are white men.

    People For the American Way’s Marge Baker lauded Obama’s judicial selections, saying they “are emblematic of the president’s commitment to nominating qualified, diverse nominees to the federal bench.”

    It appears, however, that Republican leaders in the Senate, for the most part, are not in any rush to fill the vacancies, even though 34 of them are deemed judicial emergencies, meaning the courts are overworked, understaffed. With too many vacancies and overworked judges it makes it incredibly difficult for the justice system to function.

    But more than 23 national public interest groups are urging Senate leaders to stop dawdling on judicial nominations. In a Nov. 27 letter to Sen. Majority Leader Harry Reid and Minority Leader McConnell, the groups say that 19 pending nominations should be voted on before the next Congress.

  • November 14, 2012
    Guest Post

    By Sam Kamin, Director, Constitutional Rights & Remedies Program and Professor, Sturm College of Law, University of Denver


    With the passage of marijuana legalization initiatives in Washington and Colorado, the long-simmering cold war between state and federal marijuana policy threatens to break out into open hostilities. While eighteen states plus the District of Columbia now permit marijuana for medical purposes, only Washington and Colorado have taken the bolder step of both repealing entirely their marijuana prohibitions for small amounts of the drug and requiring their state legislatures to begin regulating a retail, recreational marijuana industry by the end of 2013.

    Everything now depends on the response of the federal government. Notwithstanding changing policy in the states, marijuana remains on the DEA’s list of Schedule I narcotics, those drugs whose manufacture and sale are strictly prohibited. Thus, every transaction in every medical marijuana state throughout the country constitutes a federal crime. The Justice Department has grudgingly accepted the medical marijuana industry thus far; while there have been some federal raids on these businesses, they have generally been permitted to operate, notwithstanding their open flouting of the Controlled Substances Act (CSA).

    In 2010, when the state of California considered Proposition 19 which would have legalized marijuana for recreational purposes U.S. Attorney General Eric Holder issued voters in that state a strong warning. He made clear that the federal government would “vigorously enforce” the provisions of the CSA in the state if voters passed the Proposition. After having an early lead in polls, the measure eventually lost.

  • September 10, 2012

    by Joseph Jerome

    Recently in The New York Times, Adam Liptak cautioned that the legislative paralysis brought on by congressional polarization has made the Supreme Court increasingly more powerful, but a dysfunctional legislature can also increase the power of the presidency. Issue after issue, important separation of powers principles are being distorted as the other branches assert their power. In the courts, this produces policy without accountability. When the president acts without Congress, it creates a democracy governed by executive decree.

    In our system of checks and balances, power grabs, particularly by the executive, are not surprising. “[A]ll the time, presidents are pushing out on the boundaries of their power and claiming new authority,” Professor William Howell explains, but the president’s ability to secure that authority is dependent upon how the other branches respond. If Congress’ failure to address calls for cybersecurity legislation is any indication, Congress’ response these days is simply to pass the buck over and over again.

    Before leaving for its recent recess, congressional dysfunction was on a full display when the Senate failed to overcome a filibuster of the Cybersecurity Act of 2012. The Senate’s treatment of the issue devolved into a circus, with longtime allies Sens. Joe Lieberman (I-Conn.) and John McCain (R-Ariz.) arguing over each other’s national security bona fides. The legislative breakdown followed a familiar pattern:  after Senate Majority Leader Harry Reid refused to permit additional amendments to the bill, the threat of a Republican filibuster ended any further discussion, and the Senate closed for business.

    Sen. Mitch McConnell (R-Ky.) insisted that Republicans did not really wish to filibuster the bill, arguing instead that Republicans only sought to improve the proposed law through their set of amendments.  Yet he failed to mention that one of his own suggestions to “improve” cybersecurity legislation was to completely repeal the Affordable Care Act, leaving Reid to wonder what gutting health care reform had to do with cybersecurity.