Monday, November 11, 2013
The DC Circuit Vacancies
Gerard N. Magliocca
The latest reason to hate Congress comes from the stalemate over President Obama's three pending nominees to the DC Circuit. Senate Democrats are complaining about the Republican filibuster of these candidates, though they show no inclination to change the rules governing filibusters. Senate Republicans, on the other hand, are arguing that their filibuster is justified because the President is attempting to "pack" that court and there is not enough work on that court to justify new judges.
Giving the party that does not control the Presidency 1/3 the slots won't work of course, since there are way more than two parties in this country.
Gerard identifies a key problem with our political system: the "winner take all" aspect of presidential elections, whereby, unlike in the overwhelming number of states, the "chief executive" gets to appoint all cabinet heads and, in addition, plenary power to be the "first mover" with regard to judicial nominations. If these are such good ideas, it's worth asking why they have been rejected in almost all of the states.
"They want their nominees confirmed, but they want to reserve the right to block future Republican nominees when they are in the minority."
If I were a Democrat, I wouldn't worry about this. Yes, Republicans winning uncontested votes in certain states and congressional districts means it will be tough for Democrats to have a supermajority in the Senate and control the judicial nominations outright. However, the national demographics are such that I don't see a Republican taking back the White House for a long time (at which point they may have embraced issues like same-sex marriage, immigration reform, Obamacare, etc.). The best way for Democrats to having a lasting legacy is for Obama/Clinton/Biden/Warren/etc. to appoint lifetime-serving judges who will protect their social agenda. Look at how Bush and Reagan nominees are still controlling voting rights, public financing, etc.
What makes you think the Rs will abide by this deal once they control the Senate and the White House? They'll repeal the filibuster in a NY minute in order to get extreme right judges appointed. The only consequence of your offer will be the loss of potential Dem appointments and the addition of 1/3 new extremists.
The OP is going "both sides are wrong" path. Doesn't quite work here. First off, I'm game for -- prospectively -- setting up some sort of agreement like was in place when B41 was in office ... for district court judges.
Mark Field's cynicism (realism?) is granted, but it is a reasonable idea. Have the minority party have a list of options, make sure they are reasonable ones (e.g., Sotomayor -- a former NYC prosecutor -- was not some raging liberal), and they can have some fraction of the slots.
There is no "cake and eat it too" on the D.C. matter -- this is not the usual filibuster based on "extraordinary circumstances" because a nominee is deemed to be too controversial or some other special reason (usually just cover for ideological opposition). There is no "packing" involved in the D.C. Court.
The Republicans don't like the idea of Obama having the ability to fill some vacanies on a closely divided important circuit court. So, like they did with the NLRB -- which is why even some traditionalist Dems are starting to lose patient -- they want to nullify the law -- they cannot change the number of seats (or the rules of the NLRB before) by normal procedure, so they want to do it this way.
THIS is what is the straw the broke the camel's back (some cases where nominees who eventually got 80 or more votes being blocked didn't help). Don't see the hypocrisy myself.
Obama if anything has gotten grief from the left for not doing enough to fill vacanies or fill them with younger or more left leaning personnel. He also is on record as less concerned about ideologically using the courts to advance the law. This is a now common Republican/Democrat divide on the executive level though it is balanced somewhat by the moves of senators. Estrada was part of an extended battle -- at least back to the Clinton years -- and in context, he was not uniquely targeted. I don't know how he was treated "very unfairly" as compared to various other nominees, including Democratic nominees like Dawn Johnsen or others.
Why the Republicans should in effect be rewarded for twice (at least) now trying to nullify the law (when did Dems try to do what they did with the NLRB nominations? again, the Rs admit they have nothing against the individuals nominated -- such is an abuse of the filibuster) is unclear to me.
If some leading voice like Estrada is going to be put, he should West Wing-like bring along with him someone similar -- I'll give you Estrada for Pamela Karlan. Deal?
An amusing example of GOP Senatorial political ping pong was demonstrated on last night's The Daily Show feature on the "60 Minutes" Benghazi report last month that inspired Sen. Lindsey Graham (Cracker, SCar) to put holds on several of Obama's nominations. Graham made reference to two (2) FBI reports that the "60 Minutes" witness ("witless"?) stated were the same as his info to "60 Minutes" to support Graham's holds. When "60 Minutes" conceded that its witness was not reliable as the FBI report(s) did not support his statements to "60 Minutes," Graham said that he released a couple of his holds but continues with some holds despite the "60 Minutes" mea culpa. So we have this GOP Senatorial game of hold and release and still hold. Gerard's cure might open the door to further efforts by the GOP Senate minority to thwart Obama's Administration.
The Daily Show also focused on Time's cover with a profile of NJ Gov. Chris Christie captioned "The Elephant In The Room" as an attempt at girth mirth. Time has tried to avoid the girth mirth construction of its caption. But consider that the "Room" referenced is the GOP which is filled with symbolic "Elephants," including several with ambitions for 2016. I can't wait for the GOP debates but will there be enough room on a stage for all these "Elephants" unless choreographed by Ringling Bros. and Barnum & Bailey?
The GOP Senate minority will continue its political ping pong until the changing demographics set in obviously in desperation.
The individual senator hold business -- at least it's out in the open here -- is a particular bit of stupidity.
The Senate GOP Caucus might heed Kenny Rogers' "The Gambler" to learn when to hold and when to fold. A senator who holds a bad hand is not risking his own money but that of the taxpayers while staking his claim for reelection. Usually it's not a matter of principle but of principal, augmented by Citizens United.
Since the voters divided the government, President Obama has been ruling by decree through executive orders and mass manufacture of regulations. Congress cannot stop this over an Obama veto even if the voters loan the Senate to the GOP after the Obamacare train wreck. The only remedy left from bureaucratic rule runs through the DC Circuit. Thus, the unusually stout GOP resistance to Obama upsetting the balance there.
If his objective was to actually fill vacancies, Obama could nominate one justice of his choice and one agreeable to the GOP similar to Gerard's suggestion. However, Obama's goal is a DC Circuit which will rubber stamp bureaucratic rule.
The interesting question is whether the Senate Dems will be willing to give up the filibuster to push through these Obama nominees when their Senate majority after 2014 looks increasingly problematic and they may need that filibuster themselves after 2016.
What goes around, comes around.
Our SALADISTA seems to modify Gerard's suggestion of two for Obama and one for the COP and its Tea Party base by limiting each to one, making our SALADISTA' suggestion more absurd than Gerard's.
As for our SALADISTA's rubber-stamping claim, perhaps he bases this on the GOP DC Circuit Judges appointed by a Republican President in their actions. But judges do not always walk in lockstep with the views of the appointing President, as witnessed in the cases of Earl Warren and William Brennan. So our SALADISTA is once again reading barren tea leafs.
"Thus, the unusually stout GOP resistance to Obama upsetting the balance there."
seems to ignore the lack of balance on the part of appointing Republican Presidents. As I understand it, the objections to Obama's nominees are not to their qualifications but to the so-called balance that has served well GOP conservatives and their Tea Party base. How unfair of America's first African-American President to resist "the unusually stout GOP resistance to Obama upsetting the balance there." "Unusually stout" is putting it mildly.
Yes, what goes around comes around - and starts all over again.
Terms like “court-packing” and “nullification” are just political spin designed to get the public riled up about judicial confirmations in which they would otherwise be disinterested.
I am more concerned about what this debate says regarding the Senate’s view of the rule of law than who gets confirmed or how many vacancies there are on the DC Circuit. So far I count five different positions regarding the legality of the filibuster: (1) it is constitutionally invalid in all cases; (2) it is constitutionally invalid only as to nominations; (3) it is constitutionally invalid only as to motions to amend the rules; (4) it is constitutionally invalid only as to motions to amend the rules on the first day of a new Congress and (5) it is constitutionally valid in all cases. If Senators simply pick up and discard these positions as convenient, with no apparent interest in following their own rules or even figuring out what they are, why should anyone care about the law, except as a means of predicting the personal consequences of a particular action?
Gerard’s suggestion as to how the Senate might resolve its impasse on confirmations is perfectly sensible, but this is something for the Senate to decide after it figures out what the baseline rules are. There is no point in reaching compromise on the rules if the rules are meaningless.
" ... what the baseline rules are." is up to the Senate, which can change the rules as the specifics of the "rules" and how they may be changed are not embedded in the Constitution. Positions on "rules" vary perhaps even more than on provisions in the Constitution that have proved controversial over the years because the "rules" impact the here and now political issues. And such political issues will most likely arise in the future with party changes. The "rules" are not hard-wired. Perhaps the "rules" contribute somewhat to what some term dysfunction in governance today. The role of the judiciary may be limited regarding the "rules." It is up to the Senate to act, within the law of course.
Of course, both sides will attempt to place judges who agree with them on the bench.
The only interesting thing about this story is why the sides have chosen to do battle over this particular court and what that says about the current state of our Republic.
"The only interesting thing about this story is why the sides have chosen to do battle over this particular court and what that says about the current state of our Republic."
would be more accurate if the last two words were replaced with:
" ... Republicans in Congress and their base Tea Party agonizing over the changing demographics."
I wonder if there have been recent analyses by political scientists regarding how Justices and judges decide cases in relation to who appointed them. Ike was of course surprised by Earl Warren and William Brennan while still sitting as President. Query whether Ike's being perturbed by Warren had more to do with Brown v. Bd. of Educ. than the Warren Court's other decisions?
The state of our current Republic is that the Republican Party for the last 2 Democratic presidencies simply does not accept the legitimacy of elections. Now a Democratic President can't even appoint judges to vacant judicial seats.
As far as the DC Circuit's importance? Just look at the laughable decision by that conservative hack Rodgers-Brown, who thinks that the Bible thumping religious beliefs of private share-holders should hold sway over an individual employee's medical choices, even when that employee uses their own money to exercise those medical choices.
As far as the Senate and their rules go, unfortunately too many people on the Democratic side of the aisle, including sympathetic law professors view this as some intellectual debating club. By contrast, the Republicans appreciate how much is at stake and can be gained by imposing their ideological agenda through judicial appointments. Meanwhile, the decisions are wreaking havoc on the lives of everyday Americans.
Judge Janice Rodgers-Brown is a libertarian, not a social conservative, whose opinion striking down the Obamacare mandate ordering employers to buy contraception for their employees was based on what used to be basic principles of individual liberty.
Of note for this conversation, Rogers-Brown's nomination to the DC Circuit was approved by the 2005 Senate in a deal to resolve a filibuster by the Democrat minority of the time.
Goose and gander.
Our SALADISTA waxes saucy (as lunchtime nears here).
Query: was the "resolved" filibuster related to other than judicial appointments?
Those particularly concerned about things, especially politicians, do things to "rile" people up, including to get them interested in things they otherwise might not be.
Yes. But, it is a bit too cute to say it is "just" spin when a law says that such and such slots are in a court but one party wants to block them from being filled & call it a form of nullifying. It on some real fashion IS that.
Perhaps, people should be a bit more concerned about these things. Some people are -- if no one cared, politicians wouldn't be so concerned about this sort of thing. Also, given the power of the courts & well, good governmetn concerns, the concern is justified.
mls is particularly concerned about a certain thing. The general understanding is that the filibuster is acceptable but might be a bad idea in certain ways.
There is a limited view that it is unconstitutional but "constitutional" is not how I repeatedly see it being used. So, this concern for "law" sounds like a bit of spin too -- otherwise, many would be disinterested, since they don't see it as a 'rule of law' argument as such, but a debate over the best policy while respecting some general constitutional principles like majority will or respect for some debate in the Senate.
If the number of slots to be filled on the D.C. Circuit is supposed to be something we should be disinterested about -- worry about that is just "spin," mls' concern here really seems academic. I realize it is interesting given his scholarship, but there seems to be some sort of normative argument being made here.
"The only interesting thing about this story is why the sides have chosen to do battle over this particular court and what that says about the current state of our Republic."
# posted by Blogger Bart DePalma
It says a lot, mostly about the GOP, and all bad.
More horse-[bleep] from De Palma:
a) The notion that employers are being "forced" to buy contraception for employees is a complete lie. Health insurance is compensation for employment. The employers are effectively telling their employees that they are not permitted to spend the employees' money on the coverage that he/she wants. In what world is that "personal liberty"? In what world does a corporation have a religious conscience?
That he views the filibustering by the GOP and that by the Democrats as in some way equivalent is breathtaking in its...ignorance? mendacity?
De Palma is partially correct that what's good for the goose is good for the gander. The difference is the gander continuously gets rolled, and the goose continuously moves the goal-posts (and can get away with it thanks to the feckless DC press and the likes of the OP who just say both sides do it- looks like the Sunday shows misplaced Norm Ornstein's phone number).
Democrats blocked Estrada, and (foolishly) conceded to Rodgers-Brown on the bench, while preserving the filibuster (reason 900 that former Senator Droopy can go bleep himself). Not sure what they gained by that compromise. If anything, they could have shown themselves to be intellectually honest, by eliminating a fundamentally undemocratic feature that conservatives have overwhelmingly used as a tool against for fifty years, while also being able to advance an agenda that the majority of the population supports.
Here, the dishonesty stems from Republicans using loaded terms like "packing the bench," by Obama simply filling vacancies, and being so bold as to admit they don't want him to appoint judges who share his judicial philosophy.
As far as the "individual liberty" defended by "libertarian" Rodgers-Brown, the dissent in the case does a superior job of laying rest to that then I can.
So let me try to express this in as non-offensive a way possible.
My comment was intended to focus Gerard’s attention on what is, IMHO, an important legal question. It also happens to be a question on which Gerard has the expertise and ability to add real value. Moreover, I think it is a logically prior to specific political compromises the Senate might make with regard to the confirmation process. The Senate cannot agree on a new set of rules unless it first decides in what sense its old rules are binding.
I made a similar observation in response to a post by Schickler and Wawro at the Monkey Cage last summer. They suggested that the Senate adopt new rules regarding filibusters that would take effect in January 2017, taking advantage of the fact that neither party knows who will control the WH and Senate at that time. I responded:
“There is a conflict between your contention that a simple majority of the Senate can change the rules and your proposal that the Senate fix new supermajority rules for the future. Once one accepts the proposition inherent in the nuclear option (that a simple majority has the constitutional right, not merely the raw power, to change the rules at any time), it becomes impossible to agree to entrench any rules, no matter how many Senators agree.
So while I agree with the ultimate goal of enacting new substantive rules along the lines you suggest, the first order of business must be to reject the nuclear option and provide for another method of changing the rules that reduces the pressure for opportunistic resort to the nuclear option. I have suggested that proposed rules changes would not be subject to unlimited debate under Rule XXII if they went through a multi-Congress process (much as you are suggesting for your proposed changes).”
As for my expression of disinterest in the specific controversy relating to the DC Circuit nominations, this was a mere pleasantry, which I probably should have omitted. I am not under the illusion that anyone cares about my opinion, if I had one, regarding who should be confirmed to the DC Circuit. Like other political/policy debates on these threads, it may be entertaining for the participants, but surely it makes no difference whatsoever to anyone else. It would be just as meaningful to argue about the best movie or football team of all time. So in that sense it is, to use Joe’s term,purely academic.
"and provide for another method of changing the rules that reduces the pressure for opportunistic resort to the nuclear option."
Constitutional amendment. When you want to entrench a rules change beyond change by a transient majority, that's the only way to go.
We shouldn't confuse the legislature not bothering to use Article V, with Article V not working. Congress mostly avoids Article V because it DOES work, where "working" will often imply an amendment NOT being adopted. But if we can agree that the confirmation process needs to be fixed, and are not insistent that the 'fix' be clearly to the advantage of a particular party, we can amend the constitution to do it.
I'd suggest a comprehensive reform, addressing all the problems. Not just filibusters, but 'recess' appointments, 'czars', and all the other ways Presidents bypass the requirement to have nominees confirmed.
Perhaps something like the President's "pocket veto" would be appropriate, where if a nominee isn't voted upon within some reasonable and engraved in stone period, they take office. But have the clock reset if an election intervenes, to discourage Presidents from deliberately making nominations when Congress will be preoccupied.
Add that nobody may exercise the powers of a position subject to confirmation without being confirmed, and I think you'd cover it.
Brett seems to be suggesting that the Constitution is the problem in the situation presented by this post (and comments) and needs an Article V amendment. This seems inconsistent with critical statements by Brett at Concurring Opinions on an upcoming (this Friday and Saturday) conference at BU Law School that will address whether the current political dysfunction may be caused/contributed to by the Constitution; whereas Brett blames the size of government and the role of the judiciary for political dysfunction.
Brett's scattered suggested amendment reads like an engineer's plan for a bridge to nowhere.
Let's go to Las Vegas for the odds on such an amendment and the time period it might take to get through the Article V process. Meantime, we can work on the sauce for the gander and sauce for the goose to dine on during the political dysfunction.
BU: The notion that employers are being "forced" to buy contraception for employees is a complete lie. Health insurance is compensation for employment. The employers are effectively telling their employees that they are not permitted to spend the employees' money on the coverage that he/she wants.
In a free market, employers offer a compensation package to perform a designated job and the employee agrees to accept the package to do the work.
Under our current unfree market, the government is ordering (the employee is not asking) businesses to include contraception in that compensation package to advance an ideological objective.
"In what world does a corporation have a religious conscience?"
Corporations are merely associations of individual Americans who did not check their liberties at the gate when they adopted a corporate entity to do business.
No you half wit...employers are being required to offer contraceptive coverage as an option. You act as if health insurance is being offered as a gift. You don't get to foist religious bullshit on me by telling me how I can or cannot spend my money.
Collective conscience? Bwahahaha.
Our SALADISTA talks about the "free market" and then references the "current unfree market." Perhaps our SALADISTA with his Humpty-Dumpty economist hat on can pinpoint when America last had a truly "free market." It might have been in his favorite days of the "Gilded Age." Surely it was not his second favorite era [error?] the Roaring Twenties of Harding/Coolidge/Hoover. Our Humpty-Dumpty economist is "off the wall" when it come to the "free market:" It doesn't exist and perhaps never existed since 1787. I've got a suggestion as to what our Humpty-Dumpty economist can do with the invisible hand.
"Corporations are merely associations of individual Americans"
They are separate legal entities, that is the entire point of the corporate form.
And to add to Mista W's take on our SALADISTA's view of corporations, the "individual Americans" who merely associated themselves into corporate form each retained individually their liberties. Our SALADISTA surely is aware of the ability of less than a handful of "individual Americans" being able to associate in the formation of a corporation, if they have the funds, but should these "individual Americans" get a leg up with such corporations being treated as people they can control over the many "individual Americans" who cannot afford to incorporate? Our SALADISTA is a corporate elitist.
By the Bybee [expletives deleted], individuals so associating need not be Americans. Hmmm, perhaps that's a way for non-Americans to make inroads in corporate form to exert political influence per Citizens United. Who knows, it might lead to full employment for attorneys, even those from Mark Graber's five-tier law school project.
Shag: Our SALADISTA surely is aware of the ability of less than a handful of "individual Americans" being able to associate in the formation of a corporation, if they have the funds, but should these "individual Americans" get a leg up with such corporations being treated as people they can control over the many "individual Americans" who cannot afford to incorporate? Our SALADISTA is a corporate elitist.
You folks sure are providing more than you usual share of What?!? moments in this thread.
Corporations are easy and cheap to set up and the legal entity gives the shareholders no power whatsoever over you and I.
BB can be somewhat forgiven for being an ignorant ass. You as a long time attorney should know better.
BB can be somewhat forgiven for being an ignorant ass.
# posted by Blogger Bart DePalma : 10:25 AM
LOL These poll numbers are GREAT news for John McCain!!!
Our SALADISTA demonstrates, with this, his expertise on corporate law:
"Corporations are easy and cheap to set up and the legal entity gives the shareholders no power whatsoever over you and I [sic]."
So the two Koch brothers set up a corporation funded with $1 million. As stockholders, they control the corporation for all practical purposes (including electing the Board of Directors). Of course, the Bros. might have a dispute and not act in lockstep. But what are the chances of that based upon their history? Will this give the Koch Bros. power over me? Probably not. But their use of their corporation may convince some simple minded of the agenda of the Tea Party. While not power over me, the Koch Bros and their Koch-Sucker followers may exert political influence that might affect me (although, fortunately, not here in MA, the home the Bean and God) at the national level. And of course the Koch Bros. with their billions can set up multiple Bros. corporations, each funded with $1 million to attract more Koch-Sucker followers. Now we're talking serious Citizens United money exerting political power.
A large corporation whose stock is publicly traded limits under most corporate statutes what a stockholder of a few shares may do by way of just about anything significant. But closely held corporations are a tad different, at least when I stopped actively practicing a decade or so ago. But I keep up on changes in corporate law in MA.
Corporations can have political power, especially following Citizens United. And the wealthy can form many corporations they can control to get political messages across. And that can result in political power. Just ask the Koch Bros.
Not to interrupt the ongoing ping-pong match, but why hasn't anybody addressed on the merits the Rs complaint about the low caseload and backlog of the CADC? The answer is quite simple -- they get a lot of administrative appeals with many parties and ginormous records. Likewise, they use a lot of senior judge time, in which the Rs have a large majority. Now I'm sure everyone here understands this, but where are the talking heads?
BU Law Prof. Jack M. Beermann has posted on SSRN his essay "The New Constitution of the United States: Do We Need One and How Would We Get One?" and Larry Solum's Legal Theory Blog provides a link. Prof. Beermann is a panelist at the BU Law School conference to be held tomorrow and Saturday. The essay is 35 pages, double spaced. For details of the conference, see Jack Balkin's recent post at this Blog. I have started to read the essay and hope to make headway after dinner. The essay addresses some of the issues raised by Gerard's post. I have no idea whether Prof. Beeermann is representative of the views of the many panelists. I expect some of the other panelists will post essays on SSRN.
The BU Law School conference that Jack Balkin posted on could have used Colin Quinn. Yesterday's Boston Globe in its G Section includes a limited interview of Quinn by Nick A. Zaino with the title "From the Founding to the Foundering - Quinn's view of the Constitution includes a bill of wrongs." The interview relates to "Colin Quinn: Unconstitutional" to be presented at the Paramount Center in Boston on November 19th.
The conference did not reach a consensus whether or not there is political dysfunction. And assuming there is political dysfunction, there was no consensus on whether it is due to the Constitution, and if so, no consensus on how to cure it. While there were a few laughs, the addition of Colin Quinn surely would have added more.
My late high school/college buddy Joe used to quote his Italian grandfather from time to time, including: "Halitosis is better than no breath at all." A variation of this might be: "Political dysfunction is better than no function at all."
[Note: Perhaps Fack may provide a link to his speech Saturday?]
OOPS! That's Jack - not Fack. Sorry.
Host Jim Fleming had the highest of praise for Jack as at the top of current day constitutional scholars who were born around the time of Brown v. Bd. of Educ. My attraction to this Blog came about because of his - and Sandy's - great writings on Brown.
The subject of this post has resurfaced in recent days including the possibility that the Senate may adopt rules changes to address this and other filibuster matters. As I noted in a recent comment, the recent conference at BU Law School did not seem to resolve issues of political dysfunction and whether the Constitution contributes to it, at least based upon the oral presentations at the conference by a broad spectrum of consititutional scholars and political scientists. Perhaps the panelists' papers to be included in an upcoming issue of the BU Law Review may provide a clearer picture.
The theme of the conference and the panels' presentations continue to whirl in my head and finally I went back in time to when my four kids would eagerly watch Sesame Street and the Electric Company. (They were within four years of each other.) So I too would watch with them on occasion. Every once in a while with a "Schoolhouse Rock" feature some great songs were presented. My favorite was "Conjunction Function (What's Your Function?)" After rolling this around in my head, what could be worse than verse to reflect political dysfunction and the role of the Constitution, resulting in this:
When government can’t function
Despite an election,
Is it partisan infliction,
Or an aging Constitution
Or governance as aberration
For republican democratization?
[Note: "ROC" in the title is not a typo.]
rf makes a good point as to Republicans spinning as to the 'need' for the judge slots.
Some effort is being made to show they are wrong on the merits.
On Joe's point, the PBS Newshour had a mini-debate segment on this with two pretty young women lawyers earlier this week. Hopefully there will be follow up.
If his objective was to actually fill vacancies, Obama could nominate one justice of his choice and one agreeable to the GOP similar to Gerard's suggestion. However, Obama's goal is a DC Circuit which will rubber stamp bureaucratic rule.Cheap Fifa 14 Ultimate Team Coins
They want their nominees confirmed, but they want to reserve the right to block future Republican nominees when they are in the minority. (To be fair, some Senate Democrats do want to change the filibuster, just not enough.)Post a Comment
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