• December 19, 2012
    Guest Post

    Diana Kasdan, Counsel, Brennan Center for Justice

    Every senator needs to put “fix the filibuster” at the top of his or her New Year’s Resolution List. Specifically, they need to resolve to pursue serious rules reforms that can curb the exponential rate of obstruction in recent decades. And it must happen on January 3rd. Here are three reasons why:

    1.      Congress is Broken and Senate Obstruction is Part of the Problem

    The 112th Congress has had the lowest output of any since at least World War II. This stems from reasons well beyond divided control of chambers, which defines the current and incoming Congress. Control of the House and Senate was also divided from 1981 to 1987, yet Congress enacted an average of nearly 600 public laws during each two-year period, compared to barely 200 in the current session.

    So what is causing this decline in productivity? One prime culprit is filibuster abuse. As a recent Brennan Center reportconfirms, longstanding procedural rules have become tools of obstruction allowing legislative minorities to impose a veto on nearly every order of Senate business. Even when addressing matters purely within its own control, the Senate is at a virtual standstill. The Senate has passed a record-low 2.8 percent of its own bills. At its peak efficiency in the 1950s, the Senate passed nearly 27 percent of its bills. And, on average, it has taken 188 days for the Senate to confirm a judicial nominee during the current Congress, creating 32 “judicial emergencies.” Only at the end of the congressional term in 1992 and 2010 have there been more judicial emergencies.

  • December 13, 2012

    by Jeremy Leaming

    With Republicans seemingly hell-bent on tossing the country over the so-called fiscal cliff, showing no signs of agreeing to tax hikes on the nation’s superrich, and continuing their strategy of obstructionism polling shows that a majority of Americans support filibuster reform.

    Sen. Minority Leader Mitch McConnell (R-K.Y.) embraced obstructionism during President Obama’s first term, saying his party’s top priority was to ensure Obama did not serve a second one. McConnell, however, is still set on obstructionism and not surprisingly arguing that the Constitution forbids the Senate from altering its procedures by majority vote.

    A bipartisan group of law professors – including former Reagan solicitor general Charles Fried and a former conservative federal judge Michael W. McConnell – in a Dec. 12 letter to senators says McConnell is wrong. (The letter can be read here – thanks to the Brennan Center For Justice).

    “When a newly-elected Congress convenes,” the letter states, “the newly-constituted Senate, like the newly-elected House, can invoke its constitutional rulemaking authority to make changes to the Standing Rules. At that time, a majority of the new Senate can choose to reject or amend an existing rule.”

  • 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 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 27, 2012

    by Jeremy Leaming

    Senate Minority Leader Mitch McConnell has stridently led obstructionism since Barack Obama won the presidency in 2008. The senator, as many have noted, claimed his Party’s top initiative during President Obama’s first term was to ensure he would not serve a second. That initiative failed miserably.  

    But McConnell, representing a solid red state, has nothing to fear from refusing to change, so he’ll continue to scuttle or slow the president’s judicial and executive branch nominations and likely any policy advanced by the administration. One of McConnell’s greatest tools is the threat of a filibuster, essentially requiring 60 senators to allow floor action on a whole range of matters. Posting for The Washington Post’s Wonkblog, Ezra Klein says changing the filibuster will not “fix the Senate,” but explains why McConnell is “furious” about renewed discussion of blunting the tool McConnell has used to make the Senate virtually useless. (Klein also notes hypocrisy of politicians on both sides of the argument – at one time McConnell supported changing the filibuster, and Sen. Harry Reid, now the Majority Leader, opposed altering it.)

    But things have dramatically changed since McConnell was a leader in the majority. The filibuster once a rarity has become all too frequent. As Michael McAuliff noted for The Huffington Post, Reid has “faced 385 filibusters during his leadership while Lyndon Johnson had to deal with only one when he ran the Senate.”