Says if minority continues to block qualified nominees, Senators have both right and 'Constitutional duty to change filibuster rules'...
UPDATE: Republicans block 4th nominee to DC Circuit Court of Appeals...
By Ernest A. Canning on 11/18/2013, 10:53am PT  

Last week, Senator Elizabeth Warren (D-MA), a former Harvard Law Professor, argued that Senators not only have the right, but a constitutional duty to change the Senate filibuster rules. She argued, in no small part to her fellow Democrats, that the rules were being abused by Republicans as part of a "naked attempt to nullify the results of the last Presidential election [in order] to force us to govern as if President Obama hadn't won the 2012 election."

Her remarks (see video and text transcript below) were made in the wake of the third occasion in which Senate Republicans blocked the nomination of an extraordinarily well-qualified female nominee to the important federal D.C. Circuit Court of Appeal.

"Republicans now hold the dubious distinction of having filibustered all three women that President Obama nominated to the DC Circuit," she said. "Between them, they have argued an amazing 45 cases before the Supreme Court and have participated in many more. All three have the support of a majority of Senators. So why have they been filibustered?"

"Well, the reason is simple," she explained, answering her own question. "They are caught in a fight over the future of our courts. A fight over whether the courts will be a neutral forum that decides every dispute fairly, or whether the courts will be stacked in favor of the wealthy and the powerful."

Yes. The minority party in the U.S. Senate is blocking these nominations, not because of the qualifications of these very well-qualified women, but because they are continuing a thirty-year Republican effort to "rig the courts", as Warren explains, by packing the U.S. federal bench, particularly the D.C. Circuit Court of Appeals...

Operating through the Robert Bork-founded and right-wing billionaire-funded Federalist Society, Senate Republicans are continuing what is now a thirty-year project to carry out what David Brock, in Blinded by the Right, described as a judicial "counter-revolution in the law." As a result of that counter-revolution, by "the end of 2005," as documented by John Dean in Conservatives without Conscience, the successive Reagan and two Bush Presidencies had succeeded in packing 60% of the federal appellate bench. Of "the 13 circuit courts of appeal, 9 have majorities named by Republican presidents," Dean observed in his book, which was published three years before Obama took office.

The court packing has been done by ramming through radical-right appointees during Republican administrations, often actively seeking to hide their radical views and Federalist Society connections during confirmation hearings, while consistently blocking judicial nominations during both the Clinton and Obama administrations. The strategy, according to the Federal Bar Association, has created a "crisis point with more than one-third of the current 103 vacancies in the U.S. Courts of Appeal and the District Courts [having] existed for at least 18 months."

Warren, who notes that "nine of the fourteen judges on the DC Circuit, who currently hear cases, were appointed by Republican Presidents," points to the especially acute threat to democratic accountability because the "DC Circuit...has the power to overturn agency regulations." She described it as a "lopsided court" which "seems to be finding more and more ways to help bail out businesses that never wanted to be regulated," as it busied itself "striking down environmental regulations...investor protections...[and] requirements for employers to provide access to birth control under Obamacare."

Coming at a time when a growing number of Senate Democrats are seriously considering the so-called "nuclear option," to radically limit the use --- or abuse --- of the filibuster, something that Vice President Joe Biden (a former Senator who had long adhered to Senate traditions) now believes is "worth considering," the former Harvard Law Professor's observations about their constitutional duty could boost the efforts of those seeking an end to partisan gridlock, at least as it pertains to the confirmation process for judicial nominees in the U.S. Senate.

"President Obama did win the November 2012 election by five million votes, and he has done what the Constitution requires him to do --- nominated highly qualified people to fill open vacancies on the federal bench," Warren said at the conclusion of her remarks.

"If Republicans continue to filibuster these highly qualified nominees for no reason other than to nullify the President’s constitutional authority," she argued, "then Senators not only have the right to change the filibuster rules, Senators have the duty to change the filibuster rules. We cannot turn out backs on the Constitution."

UPDATE 11/19/13: The New York Times reported that, on Monday, Nov. 18, by a 53 to 38 vote, "the Senate failed to break a filibuster of Robert L. Wilkins, [an African-American] federal judge who was nominated to fill one of three vacancies on the United States Court of Appeals for the District of Columbia Circuit..." Two Republican Senators, Alaska's Lisa Murkowski and Susan Collins of Maine, voted for cloture.

Echoing Sen. Warren's earlier remarks, Sen. Harry Reid (D-NV) said, “Appointing judges to fill vacant judicial seats is not court-packing. It’s a president’s right as well as his duty."

In a formal press release, President Obama wrote:

This obstruction is completely unprecedented. Four of my predecessor’s six nominees to the D.C. Circuit were confirmed. Four of my five nominees to this court have been obstructed. When it comes to judicial nominations, I am fulfilling my constitutional responsibility, but Congress is not. Instead, Senate Republicans are standing in the way of a fully-functioning judiciary that serves the American people.

The American people and our judicial system deserve better.

Wilkins had previously been appointed to serve as a U.S. District Court judge by a unanimous voice vote. Republicans did not challenge his qualifications. Instead, according to the New York Times, they claim that the DC Circuit doesn't have enough work to justify filling the vacancies --- a claim that the paper asserts is not supported even by "the Republicans' own count."

In his press release, the President noted that "Chief Justice John Roberts and the Judicial Conference of the United States believe that these vacancies should be filled, not removed."

The New York Times asserts that the Republicans' true purpose is prevent an elimination of the DC Circuit's "conservative tilt," adding that the GOP is "making a bold gamble" that Democrats will not not muster the 51 votes needed to alter the filibuster rules.

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Video of highlights from Senator Elizabeth Warren's 11/13/2013 floor speech on the duty to reform the filibuster...

The text transcript of Warren's remarks follow below...

SEN. WARREN: Yesterday, the Republicans blocked an up or down vote on the nomination of Nina Pillard to the DC Circuit Court of Appeal. This filibuster comes just one week after Republicans filibustered the nomination of Patricia Millett to the DC Circuit and less than a year after Republicans filibustered the nomination of Caitlin Halligan, who eventually just gave up and withdrew her nomination.

Republicans now hold the dubious distinction of having filibustered all three women that President Obama nominated to the DC Circuit. Now, collectively, these women have diverse experiences in private practice, in government, in public interest law. Between them, they have argued an amazing 45 cases before the Supreme Court and have participated in many more. All three have the support of a majority of Senators.

So why have they been filibustered?

Well, the reason is simple. They are caught in a fight over the future of our courts. A fight over whether the courts will be a neutral forum that decides every dispute fairly, or whether the courts will be stacked in favor of the wealthy and the powerful.

You know, every day in Congress we deal with the influence of powerful groups and their armies of lobbyists. But in our democracy, when we write laws, sometimes we can push back on that power. In our democracy, we have tools that can be used in the legislative process; tools like open debate and public opinion and political accountability; tools that can help the people win these fights.

But the story doesn’t end when Congress passes a law. Powerful interests don’t just give up. They shift their fight to the courts because they know that if they can weaken or overturn a law in court, they turn defeat into victory, and, if they can rig the courts by putting enough sympathetic judges in lifetime positions, a friendly judicial system will give them the chance to undermine any law they don’t like.

The DC Circuit is a particular target because that court has the power to overturn agency regulations. Nine of the fourteen judges on the DC Circuit, who currently hear cases, were appointed by Republican Presidents. The President with the most appointees on that court right now is Ronald Reagan.

And this lopsided court has been busy --- striking down environmental regulations that stop companies from spewing mercury into the air we breathe, striking down investor protections that hold corporate boards accountable, striking down the requirements for employers to provide access to birth control under Obamacare. Each of these regulations exists because Congress has passed laws telling the agencies to write them.

Now, it’s true that sometimes an agency may get it wrong, but these days, the DC Circuit seems to be finding more and more ways to help bail out the businesses that never wanted to be regulated in the first place.

Republicans may not like Wall Street reform. They may not like Obamacare. But Congress passed those laws. President Obama signed those laws. President Obama ran for re-election on those laws while his opponent pledged to repeal them. And his opponent lost by nearly five million votes.

It is not up to judges to overturn those laws or their associated regulations just because they don’t fit the judge’s policy preferences.

I understand that Republicans may prefer to keep the DC Circuit exactly as it is, but Article II, Section 2 of the Constitution says, “The President of the United States nominates judges with the advice and consent of the Senate.” There is no clause that says, except when that President is a Democrat.

Democrats allowed President George W. Bush to put four very conservative judges on the DC Circuit. All four are still serving; one as Chief Justice of the United States Supreme Court.

There are three vacancies in the DC Circuit Court of Appeals. The President of the United States has nominated judges to fill those vacancies. That’s his job. And it is the job of the Senate to confirm highly qualified independent judges. That’s how our system works. That’s what the Constitution demands.

We need to call out these filibusters for what they are --- naked attempts to nullify the results of the last Presidential election to force us to govern as if President Obama hadn’t won the November 2012 election.

Well, President Obama did win the November 2012 election by five million votes, and he has done what the Constitution requires him to do – nominated highly qualified people to fill open vacancies on the federal bench.

If Republicans continue to filibuster these highly qualified nominees for no reason other than to nullify the President’s constitutional authority, then Senators not only have the right to change the filibuster rules, Senators have the duty to change the filibuster rules. We cannot turn out backs on the Constitution. We cannot abdicate our oath of office. We have a responsibility to protect and defend our democracy, and that includes protecting the neutrality of our courts, and preserving the constitutional power of the President to nominate highly qualified people to court vacancies.

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Ernest A. Canning has been an active member of the California state bar since 1977. Mr. Canning has received both undergraduate and graduate degrees in political science as well as a juris doctor. He is also a Vietnam vet (4th Infantry, Central Highlands 1968). Follow him on Twitter: @Cann4ing.