Filibusters

  • October 29, 2010

    President Barack Obama twice called for reform of the filibuster-one of the procedural tactics that has been used to block confirmation of judicial nominees-this week: first during a meeting with liberal bloggers and again during an appearance on "The Daily Show." "What we've been seeing is unprecedented, and that makes it very difficult for us to move forward," Obama told host Jon Stewart. During his earlier meeting with progressive bloggers, the president said the filibuster is not in the Constitution and "may have arisen purely by accident because somebody didn't properly apply Robert's Rules of Procedure and forgot to get a provision in there about what was required to close debate. And folks figured out very early, this could be a powerful tool. It was used as a limited tool throughout its history. Sadly, the primary way it was used was to prevent African Americans from achieving civil rights."


    The filibuster and other procedural measures have allowed a minority in the Senate to impede the confirmation of qualified nominees, leading to a critical number of vacancies on the federal bench. Matthew Yglesias, a fellow with the Center for American Progress Action Fund, touches on this connection in a video podcast interview with ACSblog here.

  • October 29, 2010

    President Barack Obama is not the only one calling for reform of the filibuster this week. Progressive blogger Matthew Yglesias talked with ACSblog about the filibuster's impact on the judicial confirmations process, following a lunchtime discussion with members of ACS's Washington, D.C. Chapter on unprecedented abuse of the filibuster and prospects for change.

    Yglesias, a fellow with the Center for American Progress Action Fund, explained that use of the filibuster used to be rare, but that in recent years, "it's become the case that absolutely everything is put up for a 60-vote threshold. We've seen a huge increase in the use of somewhat obscure procedural tactics purely to delay things, so that even when the votes exist to pass a measure or confirm somebody, it can take many many days' worth of Senate floor time to actually get that vote scheduled."

    This delay takes a particular toll on the confirmation process, because no one nomination seems worth the time it would take to get to a vote, even when the nominee easily has the votes to be confirmed, Yglesias explained.

    "We have a huge number of vacancies and no real prospect for getting them filled unless there's some kind of change in the procedures," Yglesias said.

    Watch the interview below, or click here to download it as a podcast:

    Visit JudicialNominations.org to learn more about the judicial vacancies crisis and track developments.

  • March 23, 2010
    Guest Post

    By Paul M. Secunda, Associate Professor of Law, Marquette University Law School

    This morning, the U.S. Supreme Court heard oral argument in an important case at the intersection of labor law, statutory interpretation, and administrative law. In New Process Steel, L.P. v. NLRB, on appeal from the Seventh Circuit Court of Appeals, the Court will decide whether a two-member National Labor Relations Board (NLRB or Board) has the authority to engage in adjudication on behalf of the Board. The Board has operated with only two members for over two years, since the appointments of two Board members expired on December 31, 2007. Just before that time, effective midnight, December 28, 2007, the Board delegated all of its powers to a group of three members to continue to issue decisions and orders as long as a quorum of two members remained. Since that time, the two Board members remaining, acting as a quorum of the group, have issued over 500 decisions.

    First, some labor law background: the NLRB is an independent federal agency, established to prevent and remedy violations of the National Labor Relations Act, 29 U.S.C. §§ 151-169, called "unfair labor practices," by both employers and unions, and also to hold union representation elections. The Board is supposed to be a five-member panel that primarily acts as a quasi-judicial body in deciding cases on the basis of formal records in administrative proceedings. Board Members are appointed by the President to 5-year terms, with Senate consent. The terms of the Board members are staggered such that the term of one Member expires each year. Because of the political nature of Board appointments (with the President's party controlling three positions), the last couple decades have seen many vacancies on the Board. In the last few years, political partisanship has reached an all-time high and President Obama's recent nomination of Craig Becker to serve as a Member on the Board was filibustered by Senate Republicans this past February.

  • March 17, 2010
    ACSblog reported yesterday on a number of senators who have expressed frustration over the lagging pace of judicial confirmations. In one statement, Judiciary Committee Chairman Patrick Leahy condemned the "delays and obstruction" of President Obama's nominations. Other senators, though, joined the chorus charging Republicans with abusing the filibuster to delay or scuttle the administration's judicial selections and to obstruct other important business of the Senate. 

    Senator Al Franken (pictured) took to the senate floor to deliver a pointed rebuke of his "colleagues [who] seem more interested in using every procedural method possible to keep the Senate from doing anything." Franken cited multiple instances in which senate Republicans attempted to filibuster nominations that were ultimately confirmed by unanimous or near-unanimous votes. This practice, he charged, is a "perversion of the filibuster and a perversion of the role of the Senate." 

    Franken continued:

    In February, the Senate finally confirmed the noncontroversial administrator of the General Services Administration after 9 months. The vote was 94 to 2. Similarly this month, my colleagues forced a cloture vote, they forced a cloture vote to approve a judicial nominee for the Fourth Circuit Court of Appeals. She was then confirmed unanimously, 99 to 0. Yet we are forced to vote for a filibuster. That is nuts. This is a perversion of the filibuster and a perversion of the role of the Senate. It used to be the filibuster was reserved for matters of great principle. Today it has become a way to play out the clock.

  • March 16, 2010
    A number of senators took to the chamber's floor today to express frustration over continuing delays in confirming President Obama's executive and judicial nominations. In a statement from the floor, Senate Judiciary Committee Chairman Patrick Leahy blasted what he called the "delays and obstruction of President Obama's nominations ...."

    Not only are many of the administration's executive branch selections stalled in the Senate, but nominations to the federal bench are also languishing, due to filibusters and other delaying tactics, "the result of a Republican strategy to stall, obstruct, and delay that has existed throughout President's Obama's time in office, Leahy (pictured) said.

    From the Senate floor, Leahy said:

    In addition to the many executive branch nominees currently stalled on the Senate calendar, there are 18 judicial nominees that have been reported favorably by the Judiciary Committee-most of them unanimously-who await Senate consideration. That is more nominees than the total of President Obama's circuit and district court nominees-17-that have been confirmed since he took office. This sorry state of affairs is the result of a Republican strategy to stall, obstruct, and delay that has existed throughout President Obama's time in office. The casualties of this effort are the American people who seek justice in our increasingly overburdened Federal courts.

    By this date during President Bush's first term, the Senate had confirmed 41 Federal circuit and district court nominations. 

    ...

    In contrast, the Senate has confirmed just 17 Federal and circuit court nominees-just 17-during President Obama's first term.

    We are currently on pace to confirm fewer than 30 Federal circuit and district court nominees during this Congress, which would be easily the lowest in memory. That number stands in sad contrast to the 100 judges we confirmed when I chaired the Judiciary Committee for 17 months during President Bush's first term. When we were reviewing the judicial nominees of a President of the other party, and one who consulted across the aisle far less than President Obama has, we confirmed 100 judges in just 17 months. President Obama is in his 14th month and Senate Republicans have allowed only 17 Federal circuit and district court judges to be confirmed. We are 24 behind the pace we set in 2001 and 2002.