10.31.13 10:40 PM ET
Why Democrats Should End Nomination Filibusters
Thursday afternoon, Republicans filibustered two of President Obama’s nominees: one to the Federal Housing Finance Agency, the other to the D.C. Circuit Court of Appeals, one of the most important courts in the country.
An ordinary observer might look at this and assume there was a problem with the nominees. Were they too extreme? Not qualified? Unprepared for the tasks ahead of them? In this case, not at all. Instead, it’s just another chapter in the GOP’s long effort to gum up the works and disrupt the White House through abuse of the filibuster, an otherwise extraordinary measure that has become a routine part of governance in the age of GOP extremism.
North Carolina Representative Mel Watt—President Obama’s nominee to the FHFA—is a long-time member of Congress with twenty years on the House Financial Services Committee. It’s fair to disagree with his priorities as a lawmaker and potential regulator, but there’s no question he’s qualified for the position. To wit, this week, a large coalition of civil rights groups endorsed Watt, praising him for his “long history of standing up for working families, promoting safe and affordable housing, speaking out against predatory lending, and advocating for keeping homeowners in their homes.”
Republicans don’t have a specific complaint with Watt, and haven’t questioned his ability to do the job. Their only issue, it seems, is that Watt is the Democratic nominee of a Democratic president. Indeed, Republicans would prefer that Obama stuck with the acting FHFA director, Edward DeMarco, who entered the agency as an appointee of George W. Bush. “We’ve spent so much time at the White House prior to them naming a nominee asking them to please not appoint a politician, please appoint a technocrat,” said Tennessee Republican Bob Corker in an interview with Bloomberg. “To have a politician in that position, to me is inappropriate.”
The problem for Corker and his colleagues is that the Constitution doesn’t outline requirements for presidential appointees. Obama can choose whomever he likes; the Senate’s job is to offer its advice and consent, which they’ve declined, in favor of unprecedented obstruction. Watt is the first sitting member of Congress to be blocked for an appointment since 1843.
Patricia Millett is the other qualified nominee to face partisan obstruction from Senate Republicans. Nominated for the U.S. Court of Appeals for the District of Columbia, she’s worked in Democratic and Republican administrations, argued dozens of cases before the Supreme Court, and has wide support from the legal community. She was even praised by Texas Republican Senator Ted Cruz for her “fine professional qualifications.”
But, like Watt, Millett is the Democratic nominee of a Democratic president. What’s more, the D.C. Court of Appeals is one of the most powerful in the country, a place which litigates critical issues like the Affordable Care Act. At the moment, the D.C. Circuit has a conservative majority, which Republicans want to preserve by maintaining the three-seat vacancy. And for good reason: Conservative judges on the court have overturned Environmental Protection Agency regulations, denied recess appointment power to the president—a huge blow to his ability to staff the executive branch, and one that gives even more power to Republican obstruction—and issued a series of pro-corporate rulings.
In fact, Republicans are so desperate to keep their Bush-era advantage that they’ve denounced Obama’s attempt to fill vacancies as “court packing.” “Unfortunately,” wrote Texas Senator John Cornyn in a recent editorial, “top Democrats are now smearing the D.C. Circuit judges and vowing to do whatever it takes to shift the court in a more liberal direction.”
But filling judicial vacancies isn’t some nefarious plot; it’s one of the core jobs of the President of the United States. And as president—i.e., the elected representative of the entire country—he has the prerogative to nominate judges who reflects his values and supports his ideological goals. Nearly a year ago, voters sent Barack Obama back to the White House and gave him a 55-seat majority in the Senate. If that means anything, it’s that Obama is empowered to staff the government and fill the courts as necessary.
If Republicans have a problem with this, they can push to reform the nomination process, or they can win elections. What’s unacceptable, however, is to abuse procedural rules to block the president from taking any action to staff agencies and fill the courts. Not that this is new. For the last five years, Republicans have used the filibuster to throw a wrench into the business of government, blocking scores of judicial and executive branch nominees, and refusing to fill vacancies in agencies they oppose, like the Consumer Financial Protection Bureau. This behavior is so unprecedented that neutral observers have likened it to nullification and other anti-majoritarian tactics. To borrow from Missouri Senator Claire McCaskill, it is just another way to “shut down the government.”
It’s for this reason that, in reaction to the filibusters of Watt and Millett, Vice President Joe Biden warned Republicans that Senate Democrats could use the “nuclear option” to change the rules and end the filibuster on nominations, bringing the threshold to a sensible 51 votes—a simple majority. This is a step worth taking. Like a “griefer”—an unscrupulous player in competitive online video games who sabotages his opponent with cheating and unfair attacks—Republicans have broken the norms of the Senate in a fit of partisan pique. And if Democrats do nothing, they’ll be hard-pressed to act when the stakes are even higher (a Supreme Court vacancy, for instance).
This is to say that now is the time for Democrats to pull the trigger, end the filibuster on nominations, and restore a little balance to Congress.