As Senate Nominations Battle Heats Back Up, GOP Grasps at Straws to Justify Obstruction

Washington, DC – The debate over Senate obstruction – and Senate rules reform – has returned to center stage in Washington. This week, Senate Democrats are seeking to advance the nomination of Patricia Millett, the first of three nominees to fill existing vacancies on the U.S. Court of Appeals for the D.C. Circuit, as well as Rep. Mel Watt to lead Federal Housing Finance Agency (FHFA). Already, Senate Republicans are threatening to block both nominations. The Republicans’ rationale has nothing to do with the nominees’ qualifications and much to do with the GOP’s insistence to use Senate obstructionist tools in an attempt to:

  • Undermine laws and agencies they don’t agree with; and
  • Deny President Obama his constitutional authority to appoint nominees to vacant positions.

See below for claims and realities regarding the impending battles over Senate nominees and for a reminder why Senate Majority Leader Harry Reid (D-NV) should follow through on his threats to reform the Senate rules should these latest qualified nominees be denied a vote. 

The qualifications of D.C. Circuit nominee Patricia Millett are near-impossible to attack (Senator Ted Cruz even noted approvingly of Millett’s “very fine professional qualifications”). As a result Republican Senators have been making ridiculous claims to underscore their obstruction:

  • Claim: Filling Existing Judicial Vacancies on the DC Circuit Court Represents “Court-Packing: Republican Senators like John Cornyn (R-TX), Chuck Grassley (R-IA), and Mike Lee (R-UT) have continually asserted that attempts to fill the D.C. Circuit’s three outstanding vacancies represents “court packing.” 
  • Reality: Filling Existing Judicial Vacancies is Opposite of Court-Packing: As Huffington Post’s Jennifer Bendery noted, “charges of ‘court-packing’ are factually incorrect. The term is used to describe an attempt to increase the number of judges on a court with the goal of shifting its political balance, not to fill existing vacancies. One could even make the case that GOP efforts to prevent Obama from filling empty court seats, thereby keeping those courts from having judges appointed by a Democrat, are instances of ‘court-unpacking.’” As conservative columnist Byron York tweeted last spring, "It doesn't strike me as 'packing' to nominate candidates for available seats."  People for the American Way points out, “While President Obama has had just one nominee confirmed to the court, President George W. Bush had four confirmed, George H.W. Bush had three and Ronald Reagan had eight. In fact, 15 of the last 19 judges confirmed to the court were nominated by Republican presidents.” 
  • Claim: the DC Circuit Caseload is Insufficient, Therefore We Don’t Need to Appoint New Judges: Senate Republicans’ other consistent claim regarding the D.C. Circuit vacancies is that the caseload of the D.C. Circuit is insufficient to warrant three new judges.  In fact, Senator Grassley has introduced legislation to shrink the size of the Court.  Again, these charges are without merit.
  • Reality: The D.C. Circuit Court Caseload is Greater than When George W. Bush Made His Appointments – and Chief Justice Roberts Disagrees with GOP Assessment: HuffPost’s Bendery also highlights that Supreme Court Chief Justice John Roberts rejects the caseload excuse, signing onto “an April 5 report by the Judicial Conference of the United States that recommends keeping the court at 11 seats.” In fact, the D.C. Circuit Court actually had “a smaller caseload when Republicans worked to fill the 9th, 10th, and 11th seats with George W. Bush’s nominees” (see here for detailed analysis from People for the American Way).

During the confirmation process for Supreme Court Justice Elena Kagan in 2010, Senator Lindsey Graham said, “I'm going to vote for her because I believe this election has consequences. And this president chose someone who is qualified to serve on this court…” Elections do have consequences and the same standard should apply to Patricia Millett, as well as Mel Watt and other nominees for outstanding executive and judicial vacancies.

  • Claim: Mel Watt is Unqualified to Lead FHFA. Republican opposition to Watt has been centered on claims that he is unqualified for the FHFA position.
  • Reality: GOP Obstruction Driven by a Dislike of FHFA and Rep. Watt’s Likely Focus Areas: Instead of Watt’s qualifications, Republicans should admit that they don’t like FHFA and Rep. Watt’s record siding with consumers ahead of banking interests. Senate Republicans are asserting that nominee Mel Watt is unqualified.  As a result, they appear prepared to make Mel Watt the first sitting Member of Congress to be filibustered since before the Civil War. See here for an overview of Rep. Watt’s stellar qualifications.

This past summer, the underlying issue prompting the showdown over Senate rules was the GOP’s attempt to make the NLRB and CFPB inoperable and toothless.  Despite the promise of the eventual agreement forged on executive branch nominees, it is clear that the Republicans’ “nullify through obstruction” strategy remains intact and that this Summer’s agreement has failed to provide a new model for Senate functionality.

Senate Majority Leader Harry Reid (D-NV) pledged to revisit Senate rules reform if Republicans continue to block nominations to fill DC Circuit vacancies and remained up to their old tricks.  If Republicans follow through on their filibuster threat, Senator Reid should live up to his.