Sustained Outrage

Sen. Byrd on holds and confirmations

As recently as last week, Sen. Robert C. Byrd displayed his mastery of and insight into the Senate’s archaic rules of procedure. As the Associated Press’ Andrew Taylor noted in his obituary of the longest-serving senator in U.S. history, Byrd’s procedural acumen was widely admired: “‘Bob is a living encyclopedia, and legislative graveyards are filled with the bones of those who underestimated him,’ former House Speaker Jim Wright, D-Texas, once said in remarks Byrd later displayed in his office.”

With confirmation season in full swing (U.S. Supreme Court nominee Elena Kagan’s confirmation hearings began yesterday) and a number of nominees pending, including James Wynn and Albert Diaz, two North Carolina judges up for seats on the U.S. Court of Appeals for the 4th Circuit, Sen. Byrd weighed in on abuses of the tradition of anonymous holds:

I commend the Committee for this third hearing on the filibuster and cloture rule, with today’s focus on secret holds and nominations.

When a small minority – often a minority of one – abuses Senatorial courtesy, and indefinitely delays action on a matter, then I am as adamant as any of my colleagues insisting that Senators should come to the Senate floor and make their objections public.

When such abuses have occurred, I have supported efforts by others, (and proposed some ideas of my own), to ignore requests for holds after a designated period of time. As Majority Whip, I supported the Democratic Caucus policy not to honor holds after three days. As Majority Leader, I cautioned Senators that I would not delay action on a bill indefinitely because of a hold. In the 108th Congress, I cosponsored, with Senators Wyden and Grassley, Senate Resolution 216, which would have required holds to be disclosed in the Congressional Record after three days. I supported the Honest Leadership and Open Government Act of 2007, which requires Senators to publicly disclose their intent to object to proceeding to a matter after six days. I am ready to support any reasonable proposal that will do away with indefinite holds.

However, there are situations when it is appropriate and even important for Senators to raise a private objection to the immediate consideration of a matter with the Leadership, and to request a reasonable amount of time to try to have concerns addressed. I declined to sign the pledge that has been circulated by Senator McCaskill, because it does not differentiate between temporary and permanent holds. There are times when Senators put holds on nominations or bills, not to delay action, but to be notified before a matter is coming to the floor so that they can prepare amendments or more easily plan schedules. Certainly, Senators should not have to forswear requesting private consultation and advanced notification on a matter coming to the floor.

If the Committee pursues changes to the Senate rules, we must avoid impinging on common sense Senatorial courtesy. We must also realize that if Senators persist in abusing Senatorial courtesies like holds, and taxing the patience of their colleagues by objecting to noncontroversial matters, then Senators are flirting with the loss of those privileges.

Goodwin confirmed by Senate

The U.S. Senate unanimously confirmed R. Booth Goodwin II to be U.S. Attorney for the Southern District of West Virginia on Tuesday. The Senate also approved John Foster to be U.S. Marshal for the Southern District and Gary M. Gaskins to be U.S. Marshal for the Northern District.

In a news release, Sens. Robert C. Byrd and Jay Rockefeller applauded the confirmations. From the release:

“I was proud to have recommended Booth Goodwin as U.S. Attorney for the Southern District. His confirmation and appointment is not a day too early. There are a variety of investigations taking place which require immediate attention — including the recent mine disaster in Montcoal which took the lives of 29 West Virginia coal miners.  I believe the people of the southern coalfields deserve the competent and vigilant representation that Mr. Goodwin will bring to the table. He has some very important work to do, and the Southern District is entitled to the resources they need to see their interests protected,” said Byrd.

“I have known Booth Goodwin for many years and cannot think of a better person to fill this important position – a position responsible for investigations of tremendous significance to Southern West Virginia including the tragic Upper Big Branch mine disaster,” said Rockefeller. “His years of service show that he is fighting for the people of West Virginia – and I know that as U.S. Attorney for the Southern District of West Virginia he will continue to enforce our laws and protect our state’s citizens from crime. Mr. Goodwin is more than qualified as a federal prosecutor and I am pleased that the Senate has moved forward on his confirmation.”

In addition, Senators Byrd and Rockefeller applauded the Senate’s unanimous confirmation of West Virginia’s federal U.S. Marshals:  John Foster to be United states Marshal for the Southern District of West Virginia; and Gary M. Gaskins, to be United States Marshal for the Northern District of West Virginia.  Senator Byrd and Senator Rockefeller recommended both Foster and Gaskins to these positions.  They were unanimously approved by the Senate Judiciary Committee on May 13, 2010.

“U.S. Marshals have been protecting this great nation since 1789, and their service has never been more important than it is today. The task of securing the homeland from terrorist attack must be balanced with protecting the public’s court officers and buildings and ensuring the effectiveness of our judicial system. West Virginia is fortunate to have the experience and dedication of men like John Foster and Gary Gaskins to fill those roles,” Byrd stated.

“In these two men we have almost six decades of law enforcement experience, said Rockefeller. “Whether serving as a West Virginia State Trooper or in the U.S. Marshal Service, John Foster and Gary Gaskins have protected West Virginia communities for their entire careers and I am confident that they will keep serving us with integrity and dedication. I look forward to seeing them take office and I thank them for their willingness to continue their incredibly important and honorable work.”

Holds and the 4th Circuit

With so much attention naturally focused on the nomination of Elena Kagan to the U.S. Supreme Court, it’s easy to forget that there are still 99 federal judicial vacancies, including 16 on the appellate level.

Several recent editorials have blamed the slow pace of confirmations on anonymous holds, a procedural maneuver that allows a single senator to block a nomination (or legislation) without having to provide any justification.

Here’s the Washington Post’s take, which blamed Sen. Jim DeMint (R-S.C.) for torpedoing a recent bipartisan effort to ban holds by attaching a last-minute amendment:

There is no excuse for the Senate institution known as the secret hold–the process by which a single, anonymous senator can block action without having to come forward and explain why. Senators know this, which is why every time the question has come before them, they have voted to do away with the secret hold. But somehow the hold has always held on — because while no senator has the guts to defend it publicly, behind the scenes the secret hold is a useful tool for those who are more interested in blocking and extorting than in legislating.

On Tuesday, an editorial in the Charlotte Observer claimed that a senatorial hold by Jon Kyl (R-Ariz.) was responsible for holding up the nominations to the U.S. Court of Appeals for the 4th Circuit of two North Carolina judges, Albert Diaz and James A. Wynn Jr. They were reported out of the Senate Judiciary Committee on Jan. 28.

Their nominations, as those of so many North Carolinians whose names have been sent to Washington for Senate approval, ran afoul of U.S. Sen. Jon Kyl, Republican of Arizona, and they have moved not one inch closer to Senate confirmation. Kyl has given no compelling reason for his action in late April blocking a vote by the full Senate. He has said only he did not want to jeopardize a deal between Republicans and Democrats on some other nominees, but Kyl appears to be using Wynn and Diaz as pawns in one of the pettiest displays of pertinacious politics in a congressional session noted for it.

The refusal to hold a confirmation vote on the two N.C. nominees is indefensible. There is no question about the character of these two nominees or their abilities. The only question is how long Sen. Kyl will block a vote. [North Carolina Republican Sen. Richard] Burr should use his influence with his party to allow this vote to go forward and put these outstanding jurists to work on the 4th Circuit Court of Appeals.

This piece in the Roanoke Times quoted Sen. Ron Wyden (D-Ore.), who co-sponsored the effort to get rid of holds, as saying the cause of open government was “blindsided” by DeMint, who effectively “kneecapped” his colleagues.

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Judiciary approves Goodwin as U.S. Attorney

At this morning’s executive business meeting, the Senate Judiciary approved Booth Goodwin to become the U.S. Attorney for the Southern District of West Virginia. Goodwin’s endorsement came at the end of the meeting, when a handful of nominees, including John Foster and Gary M. Gaskins to be the U.S. Marshals for West Virginia’s Southern and Northern districts, respectively, were approved all together by the committee.

Almost the entire meeting was spent discussing a different Goodwin, Goodwin Liu, a law professor at the University of California at Berkeley who is up for a seat on the U.S. Court of Appeals for the Ninth Circuit. Liu passed out of committee by a 12-7 vote on strict party lines, with multiple Republican senators, including Ranking Member Jeff Sessions (R-Ala.), Orrin Hatch (R-Utah), John Kyl (R-Ariz.), Lindsey Graham (R-S.C.), John Cornyn (R-Tex.), and Tom Coburn (R-Ok.) all speaking out against Liu’s record as an academic with no judicial experience.

Sessions worried about adding Liu to the Ninth Circuit, which he called “one of the most undisciplined courts in America, one of the most activist courts in America.” Hatch questioned whether Liu would put his own views ahead of settled law, saying, “The Constitution must control government, not the other way around.”

Democrats countered that the senate had confirmed several circuit judges nominated by Republican presidents who had academic rather than judicial experience. Sen. Dianne Feinstein, (D-Calif.) noted that neither Judge Michael W. McConnell (who resigned from the Tenth Circuit in August 2009 to become the director of the Stanford Constitutional Law Center) and J. Harvie Wilkinson III (who taught law at the University of Virginia and edited the Norfolk Virginian-Pilot‘s editorial page for three years before President Reagan appointed him to the Fourth Circuit in 1984) had any judicial experience before becoming appeallate judges.

The discussion of Liu’s credentials offers an interesting prelude to the confirmation hearings of Elena Kagan, President Obama’s nominee to replace retiring Associate Justice John Paul  Stevens on the U.S. Supreme Court. Although Kagan is expected to be confirmed without too much difficulty, oppenents to her nomination are likely to raise the same issues about her academic, rather than judicial, experience.

Booth Goodwin on Senate Judiciary’s Thursday agenda

R. Booth Goodwin II, who was nominated by President Obama to be the U.S. Attorney for the Southern District of West Virginia on Jan. 20, is on the agenda for Thursday’s business meeting of the Senate Judiciary Committee.

If Goodwin’s confirmation goes smoothly, he will become the first nominated and confirmed U.S. Attorney in the Southern District since Kasey Warner left the office under a cloud of speculation in 2005.

Goodwin is the son of Joseph R. Goodwin, the district’s chief federal judge. Judge Goodwin told the Gazette in January that he will no longer hear criminal cases if his son is the district attorney. The judge has already recused himself from any cases handled by his son or the economic crimes section, which Booth Goodwin has headed for the past two years.

Two other West Virginia nominations are also on Thursday’s agenda: John Foster, to be U.S. Marshal for the Southern District, and Gary M. Gaskins, to be U.S. Marshal for the Northern District.

From delaying votes to delaying hearings

I’ve written before about how long it can take for the entire senate to give consideration to judicial nominees — even non-controversial ones — after they’ve passed out of committee. Recent developments suggest that it may be getting harder to even get a hearing in front of the Senate Judiciary Committee in the first place.

Today, at the behest of Judiciary Republicans, Chairman Patrick Leahy (D-Vt.) agreed to delay the scheduled hearing for two judicial nominees from California. In so doing, he released a statement blasting the maneuver as “petty, partisan politics.”

patrickleahySenate Republicans’ tactics of obstruction and delay know no limit. They have objected to reasonable timetables to consider President Obama’s qualified judicial nominees, and now they are objecting to allowing the Judiciary Committee to conduct hearings in connection with these nominations. Senate Republicans continue their ill-advised protest of meaningful health reform legislation by exploiting parliamentary tactics and Senate Rules, to the detriment of the American people and, in today’s instance, at the expense of American justice. I urge them to reconsider and allow this hearing to proceed as scheduled.

I have accommodated requests from Judiciary Committee Republicans to delay the Committee’s hearing to consider Professor Liu’s nomination. I had intended to hold this hearing two weeks ago, but instead scheduled a hearing for Judge Robert Chatigny, a nominee to the Second Circuit Court of Appeals. When Republicans who had agreed to proceed on the Chatigny nomination then reversed themselves and asked that I postpone the hearing on that nomination, I did so as a further accommodation to them. Those accommodations have met with the same Republican stonewalling we have seen in our efforts to consider judicial nominees since President Obama was elected, including the stalling of 22 judicial nominees favorably reported by the Judiciary Committee and awaiting final Senate approval. Sixteen of those judicial nominees were voted out of Committee without opposition and yet the delay and obstruction continues.

Meanwhile, the number of judicial vacancies continues to grow. Right now, there are 102 vacancies, with 37 nominees pending. On Feb. 1, 2009, just days after President Obama took office, there were 59 total vacancies. So, in the 14 months that Obama has been in office, there have been more vacancies created (43) than filled (19, which includes Associate Supreme Court Justice Sonia Sotomayor). At this rate, by the end of this term, there will be 82 vacancies — or more than nine percent of the 876 federal judgeships.

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Judicial nominees: 2012 and beyond?

That’s the time frame that Senate Republicans are using, according to Sen. Mark Begich, D-Alaska, one of several Democratic senators who took to the Senate floor on Tuesday to decry the pace of judicial confirmations. Here’s what Begich said:

The problem and the cynicism of Republican obstructionism is seen nowhere as obviously as in the judiciary. There are currently 103 federal judge vacancies. Several nominees reported out of the Judiciary Committee have been denied votes in the Senate by Republican obstructionism for almost 200 days. In some cases the judicial seat to be filled has been vacant for years. It is clear that—even if they are in denial about who was elected in 2008—our Republican colleagues have their sights set on 2012 and beyond, when they hope to have a huge number of federal court vacancies to be filled by a President more to their liking.

Apparently, being forced to invoke cloture over Virginia Supreme Court Justice Barbara Milano Keenan, who was then confirmed for a seat on the U.S. Court of Appeals for the 4th Circuit by a vote of 99-0, has rubbed a few senators the wrong way. More from Tuesday, from Virginia Sen. Mark Warner:

Justice Keenan was filibustered, in effect, because one Senator placed a hold on her. Consequently, cloture had to be filed. That was despite the strong endorsement Justice Keenan had received from our new Republican governor, Governor McDonnell. I appreciate his support of Justice Keenan. A funny thing happened when we forced the vote both on cloture and the nomination: She was confirmed unanimously. Filibustering a nominee who gets a unanimous vote, something is not right with that. That is not the way this body is supposed to work.

And North Carolina Sen. Kay Hagan:

In fact, there are two judicial nominees on the calendar from North Carolina who would be easily confirmed should they come up with for a vote, Jim Wynn and Al Diaz, nominees for the Fourth Circuit Court of Appeals. They were both approved by the Senate Judiciary Committee in January. But truth be told, we have not just been waiting since January, we have been waiting since 1994. There has been an opening for a North Carolina judge on the Fourth Circuit since 1994. Partisan politics has gotten in the way of filling that vacancy time and again. Finally, we have not one but two qualified judges, supported by both myself and Senator Burr. Let’s bring them up for a vote

And Minnesota Sen. Al Franken:

[Keenan] was then confirmed unanimously, 99 to 0. Yet we are forced to vote for a filibuster. That is nuts. This is a perversion of the filibuster and a perversion of the role of the Senate. It used to be the filibuster was reserved for matters of great principle. Today it has become a way to play out the clock. Some of my colleagues seem more interested in using every procedural method possible to keep the Senate from doing anything then they are in creating jobs or helping Americans struggling in a difficult economy. They seem to actually want the government to fail. Why else delay things you actually agree with?… Let’s give the executive branch and the judicial branch the people they need so we can help government function in the way it is supposed to and reassure Americans that government does work for them.

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Keenan confirmation vote scheduled

BarbaraMilanoKeenanJust like clockwork, the Senate has scheduled a vote tomorrow for Barbara Milano Keenan (right), the Virginia state Supreme Court Justice who was nominated by President Obama in September for a seat on the U.S. Court of Appeals for the 4th Circuit.

Why clockwork? Well, the Senate seems to have settled on four months as the appropriate amount of time for a nominee to an appellate court to wait for a vote after passing out of committee. The Judiciary Committee approved Keenan unanimously on Oct. 29, and lo and behold, four months later, she’s up for a vote. Here’s a look at the circuit judges who have been confirmed, and the lag time between committee approval and their final vote:

David F. Hamilton, 7th Circuit: Six and 1/2 months

Andre M. Davis, 4th Circuit: Four months

Gerald Lynch, 2nd Circuit: Three and 1/2 months

Beverly Baldwin Martin, 11th Circuit: Four months

Joseph A. Greenaway Jr., 3rd Circuit: Four months

Hamilton is the outlier, since Senate Republicans chose to use his nomination to send a message to the president that they are willing to hold his nominees hostage for political gain, even non-controversial centrists like Hamilton.

Last week, Sens. Jim Webb and Mark R. Warner, both D-Va., took to the Senate floor to lobby on behalf of Keenan. Webb noted that when he was sworn in last month, Republican Gov. Bob McDonnell specifically requested that Keenan administer the oath of office, adding:

I would like to respectfully request in the name of good governance and the proper functioning of our constitutional system that our colleagues on the other side of the aisle to allow a prompt vote on her nomination. Justice Keenan was voted out of committee in October of last year, by a unanimous voice vote.  Her nomination is non-controversial.  She has been a dedicated public servant, a fair and balanced jurist, and her nomination has broad bipartisan support.  I believe it is critical that we move forward as quickly as possible to confirm her nomination.

There are currently four vacancies on the Fourth Circuit, more than any other circuit.  The seat that Justice Keenan would fill has been vacant now for more than two years.

[N]ow, in the spirit of pragmatic bipartisanship and good governance, I believe it is time to move past procedural delays that seem to infect us and get on with the business of governing.

I would like to point out that out of 876 federal judgeships there are currently 100 vacancies.  These vacancies delay the administration of justice, they delay the resolution of disputes, and they diminish our citizens’ right to a speedy trial.

It is my understanding that Justice Keenan has broad support in this body, the vote in the Judiciary Committee is evidence of that. In face I would be very surprised if any senator were to vote against her confirmation. Again, I am asking my colleagues across the aisle if they might allow this nomination to advance in a timely way.

I’m guessing that Albert Diaz and James Wynn, two North Carolina judges up for seats on the 4th Circuit who passed out of committee on Jan. 28, have circled the first week of June on their calendars.

Sen. Arlen Specter, D-Pa., also published an op-ed piece last week, lamenting the slow pace of confirmations, particularly in regards to Thomas I. Vanaskie, a federal judge from Pennsylvania up for a seat on the 3rd Circuit.

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richardshelby.jpgJust days after he placed a broad hold on most of President Obama’s nominees, Sen. Richard Shelby (R-Ala.) announced Monday evening that he has lifted his hold on all but three nominees up for senior positions in the Air Force and the Department of Defense.

Through his spokesman, Shelby said he was satisfied that his maneuver had gotten the administration’s attention over his “fully justified” concerns.

As Politico.com‘s Meredith Shiner reported:

“The purpose of placing numerous holds was to get the White House’s attention on two issues that are critical to our national security – the Air Force’s aerial refueling tanker acquisition and the FBI’s Terrorist Device Analytical Center (TEDAC). With that accomplished, Sen. Shelby has decided to release his holds on all but a few nominees directly related to the Air Force tanker acquisition until the new Request for Proposal is issued,” spokesman Jonathan Graffeo said in a statement.

In Monday’s statement, however, Shelby’s spokesman contested the notion that the senator had placed a blanket hold on all nominees — saying Shelby “did not object” to the nominations of “uniform military personnel, federal judges, or Treasury nominees” — and that the senator was justified in using the procedural measure to draw the White House’s focus.

“Sen. Shelby is fully justified in his concern that the Obama administration is seeking to rescind funds already appropriated for this vital national security purpose,” the statement said. “He will continue to work through the appropriations process to ensure that the U.S. military, the intelligence community, and federal law enforcement personnel receive the funding and facilities they need to exploit and analyze intelligence information critical to fighting terrorism and ensuring American security worldwide.

President Obama met with Congressional leaders on Tuesday, telling the press later: “We can’t afford grandstanding at the expense of actually getting something done.”

The New York Times has more on Obama’s discussion with Republican and Democratic leaders here.

“In our meeting, I asked the Congressional leadership to put a stop to these holds in which nominees for critical jobs are denied a vote for months,” Mr. Obama said. “Surely we can set aside partisanship and do what’s traditionally been done to confirm these nominations. If the Senate does not act – and I made this very clear – if the Senate does not act to confirm these nominees, I will consider making several recess appointments.”

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richardshelby.jpgOn Friday, Sen. Richard Shelby (left) confirmed that he had placed a “hold” on all of President Obama’s nominees who need to be confirmed by the senate. Shelby’s spokesman explained that the Alabama Republican was upset over bidding for a Pentagon contract that could create jobs in the Mobile area and financing for building a counterterrorism in Alabama.

As this Politico article explains, a senatorial hold doesn’t completely block a nominee, but it does require 60 votes to override a hold and schedule an up-or-down vote by the entire senate. And with the election of Scott Brown in Massachusetts, the Republicans now have 41 votes in the senate, meaning they can filibuster any nominee of their choosing.

Shelby’s action came just two days after Obama said, “Let’s have a fight about the real stuff,” as he discussed how his nominees have been held hostage with senate Democrats.

Shelby’s holds prompted New York Times columnist Paul Krugman to weigh in on senatorial procedure:

In the past, holds were used sparingly. That’s because, as a Congressional Research Service report on the practice says, the Senate used to be ruled by “traditions of comity, courtesy, reciprocity, and accommodation.” But that was then. Rules that used to be workable have become crippling now that one of the nation’s major political parties has descended into nihilism, seeing no harm — in fact, political dividends — in making the nation ungovernable. … And with the national G.O.P. having abdicated any responsibility for making things work, it’s only natural that individual senators should feel free to take the nation hostage until they get their pet projects funded.

NPR’s Watching Washington blog concluded that all American should be grateful to Sen. Shelby:

Americans owe a debt of gratitude to Richard Shelby, the senior Republican senator from Alabama, and the rest of the Senate should be furious at him.

The reason is simple. Shelby has overstepped the usual bounds of caution and produced an act of senatorial arrogance so breathtaking that the country just might notice. And if the country actually knew that such shenanigans were possible, the country would be amazed and, one would hope, perturbed.

That is why 99 other senators should be short of breath, too. Because if Shelby gets noticed with this extreme version of business as usual, other senators conducting smaller-scale hostage operations on similarly selfish impulses may get noticed, too.

The post continues:

The tactic works by inducing pain. It slows or disrupts the work of literally dozens of federal agencies and courts. It interferes with the normal execution of the functions we all pay taxes to support. But this is not the goal; it is merely pressure, a means to an end.

Placing a hold on a bill or appointment has another purpose. It gives any senator leverage over the White House and the rest of the Senate.

In this case, it serves notice that until Richard Shelby has been satisfied, nothing on the Senate agenda will be more important than satisfying Richard Shelby.

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