Senate Rules Reform ? the Weekly Recap, August 2, 2013

Washington, DC – Obstruction and potential U.S. Senate rules reform remain key topics for discussion. See below for a recap of this week’s related activity – a mix of positive steps forward in the Senate for executive branch nominees combined with continued threats of obstruction for judicial nominations:

  • Executive Branch Nominations Move Forward – Senate Agreement Holds Thus Far: The Senate agreement to confirm executive branch nominees has thus far held up – with this week seeing the confirmation of five nominees to the National Labor Relations Board (NLRB) to keep American labor law functional. Additionally, this week saw progress on nominations outside the scope of the initial Senate nominations agreement, as nominees such as James Comey to the FBI, Samantha Power as Ambassador to the United Nations, the long-overdue confirmation of B. Todd Jones to the Bureau of Alcohol, Tobacco and Firearms (ATF), and a series of nominees to top executive environmental and energy posts and Michael Piwowar and Kara M. Stein to the Securities Exchange Commission (SEC).
  • Warning Signs of Senate Obstruction on Judicial Nominees: While the confirmation of executive branch nominees is a positive sign of renewed Senate functionality, some Senate Republicans are gearing up for another round of obstruction of judicial nominations by relying on ridiculous claims (such as claiming that filling outstanding judicial vacancies on the DC Circuit represents court-packing).  “Senate Republican threats to block some nominees are sparking renewed speculation of whether Senate Democrats will once again consider Senate rules change to give the nominations an up-or-down vote.  In fact, Senate Judiciary Committee Chairman Patrick Leahy (D-VT) told CQ this week that “I think the rules change will come back on the table if it’s [DC Court nominations] filibustered,” noting that, “I’m not asking for a Republican or Democratic court. I want one that’s balanced…It is not balanced now, and [Republicans] are trying to keep it unbalanced.”

Talking Points Memo’s Sahil Kapur outlines the potential strategy for Senate Democrats, “If Republicans filibuster [DC Circuit nominee] Millett, Senate Democrats face significant pressure to invoke the nuclear option from liberal advocacy outfits like Fix The Senate Now, which is already gearing up to push Democrats in that direction. Democrats’ other option is to negotiate with Republicans to let some, if not all, of the nominees through. But that would be difficult given what’s at stake, unless party leaders can credibly threaten to change the rules if Republicans maintain their blockade.”

Meanwhile, editorial boards and columnists from across the country continue to highlight how judicial vacancies are inhibiting federal courts across the country. For example, an editorial this week in the Billings Gazette noted, “Montana has two ‘judicial emergencies’ that demand prompt action by the U.S. Senate Judiciary Committee and the full Senate. Two of the three U.S. District judge slots in our state are vacant. And Montana’s U.S. District Courts are busy in a state with millions of acres of federal land, seven Indian reservations and serious drug trafficking issues … There’s no good reason why Morris and Watters can’t be confirmed before the Senate takes summer vacation next month. While Congress takes a break, new cases will be filed in Montana, and justice will be delayed — unless the Senate acts quickly to confirm Watters and Morris.”

See below for additional related commentary and analysis:

  • Michelle Schwartz, Justice Watch, Alliance for Justice: “If there’s a new Era of Good Feelings prevailing in the Senate with respect to President Obama’s nominees to key posts, apparently the Republican members of the Senate Judiciary Committee didn’t get the memo … This morning, they voted in lockstep against sending Patricia Millett—one of the president’s three mainstream, supremely qualified nominees to the D.C. Circuit Court of Appeals—to the Senate floor.  In doing so, they went out of their way to be clear that their beef was not with the nominee herself, but with allowing the D.C. Circuit to function with a full complement of judges. 
  • Jonathan Bernstein, Washington Post: “if Republicans attempt to blockade the three vacancies on the key D.C. Circuit Court … then Democrats will have little choice but to escalate — just as Democrats did when Republicans attempted “nullification” filibusters of any possible nominees to the National Labor Relations Board and other agencies in hopes of preventing those agencies from functioning .., The bottom line about the filibuster is that the best arguments for it are that, in a practical sense, it helps empower individual senators — and on the theoretical level, it allows intense minorities to block indifferent majorities. It shouldn’t, and in the long run cannot, be used to allow election losenewrs to dominate election winners. That’s what a blockade of the D.C. Circuit Court would mean, and Reid and the Democrats have an obligation to all those who voted for them, and for Obama, to shut this down.”

Additionally, outside groups continue to draw attention to the need for fundamental Senate reform:

  • Sierra Club Ads in Arizona Republic Call on Jeff Flake to Fill Judicial Vacancies: The Sierra Club also launched new ads this week in both the online and print editions of the Arizona Republic, urging Senator Jeff Flake (R-AZ) to use his power on the Committee on the Judiciary to approve the nomination of Patricia Millett to a long-standing vacancy on D.C. Circuit Court of Appeals and to end gridlock as a political tool. The ads are viewable here
  • Common Cause Litigation Challenging 60-Vote Threshold: In collaboration with Congressmen Keith Ellison (MN-05), John Lewis (GA-05), Hank Johnson (GA-04), Michael Michaud (ME-02) and DREAM Act beneficiaries, Common Cause filed a final brief to the D.C. Circuit Court of Appeals in their litigation to challenge the constitutionality of the filibuster’s 60-vote threshold.


For more information, or to schedule an interview with Fix the Senate Now leaders, contact Michael Earls at 202-261-2388,