Sustained Outrage

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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president_official_portrait_lowres.jpgEarlier today, during a meeting with Senate Democrats, President Obama said that getting nominees confirmed — including judicial nominees — “is going to be a priority.” The president urged lawmakers not to hold nominees hostage over unrelated issues, saying, “Let’s have a fight about real stuff.”

Here’s the exchange between Sen. Patrick Leahy (D-Vt.), chairman of the Senate Judiciary Committee, and the president:

patrickleahy.jpgLeahy: You have a great sense of what the federal judiciary should be. I think back to President Clinton’s time, when the other side blocked 61 of his judges. You’ve had some superb judges. You’ve talked to both Republicans and Democrats, sent up some superb names. And Senator Reid still has to file a cloture. We have to spend a week of doing that, and then they pass by 100 to nothing or 90-10.

My thing is this — because of what they did last time, we end up with the greatest shortage and the most judicial crises I think in our history. Will you continue to work very hard to get up names as quickly as possible, so that we can do this, and help us get these judges through? I don’t want the same judicial crises to occur. You’ve had good nominees. Can you commit to work with us, both parties, and keep trying to get them through?

Obama: Well, this is going to be a priority. Look, it’s not just judges, unfortunately, Pat, it’s also all our federal appointees. We’ve got a huge backlog of folks who are unanimously viewed as well qualified, nobody has a specific objection to them, but end up having a hold on them because of some completely unrelated piece of business. That’s an example, Michael, of the kind of stuff that Americans just don’t understand.

On the judges front, we had a judge for the — coming out of Indiana, Judge Hamilton, who everybody said was outstanding — Evan Bayh, Democrat; Dick Lugar, Republican; all recommended. How long did it take us? Six months, six, seven months for somebody who was supported by the Democratic and Republican senator from that state. And you can multiply that across the board. So we have to start highlighting the fact that this is not how we should be doing business.

Now, in fairness — in fairness, when we were in the minority, there were some times where we blocked judges, we blocked appointees. I think it’s fair to say we were a little more selective in how we did it — “a lot more,” somebody said. (Laughter.)

So this is an example of where I’m going to reach out to Mitch McConnell; I know Harry has as well. And I’m just going to say, look, if the government is going to work for the American people, I can’t have the administrator for GSA, which runs every federal facility, all federal buildings all across the country — here we are, we’re trying to save billions of dollars, cut waste — Claire McCaskill has been all on top of how can we audit our spending — and we could save billions of dollars in ending old leases that don’t work or renegotiating them or consolidating buildings and efficiencies. But I don’t have a GSA administrator, even though I nominated somebody who was well qualified several months ago, and nobody can tell me that there’s anything particularly wrong with her. They’re blocking her because of some unrelated matter. I don’t know, you guys may know better than I do. And that is — that has to end. It has to end. (Applause.) And the American people want it to end.

Let’s have a fight about real stuff. Don’t hold this woman hostage. If you have an objection about my health care policies, then let’s debate the health care policies. But don’t suddenly end up having a GSA administrator who is stuck in limbo somewhere because you don’t like something else that we’re doing, because that doesn’t serve the American people. Then they don’t know what the argument is about. Then it’s just sort of a plague on both your houses because it looks like you guys are just fighting all the time. And we’ve got to put an end to that.

As I’ve noted before, even non-controversial nominees, including those who pass out of committee without any votes against them, face long waits before they get a vote by the full chamber.

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Poverty scorecard: West Virginia edition

Yesterday, the Sargent Shriver National Center on Poverty Law issued a scorecard — more of a report card, really, since they give letter grades — based on how federal elected officials voted on poverty-related legislation in 2009.

You can check out how West Virginia’s two senators and three representatives voted here.

Overall, West Virginia did pretty well, at least according to the Shriver Center. Two As (Allan Mollohan and Nick Rahall, both at 94 percent), two Bs (Robert C. Byrd and Jay Rockefeller, both at 80 percent), and one C (Shelley Moore Capito, 44 percent). (When I was in school 44 percent was a failing grade, but maybe they’re grading on a curve. Actually, if you check the rankings’ methodology, it turns out 80 percent is a high B, while 44 percent is a low C.)

Interestingly, the Shriver Center puts West Virginia’s poverty rate at 17 percent, while a recent Congressional snapshot put it at 14.6 percent. The U.S. Census Bureau put the three-year average between 2006 and 2008 at 14.9 percent. While that’s a pretty big discrepancy, the underlying reality is still the same: roughly one in six West Virginians lives below the poverty line.

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After inserting himself into DuPont Co.’s appeal of the $400 million verdict in the Spelter Smelter case,  Gov. Joe Manchin announced tonight that the state Supreme Court is moving to address the issue of whether every ruling by a circuit court gets a full examination by the justices.

In his State of the State address, Manchin put it this way:

The Supreme Court has been studying this issue for the past several months, and I’m pleased to report that they have shared with me a proposal for major reform of the state’s appellate process.

Through their  constitutional rule-making authority, the Supreme Court of Appeals will soon issue rules for public comment that are intended to ensure there will be full appellate review by the Court of all final decisions on the merits issued by the circuit courts in West Virginia.

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Judicial nominations: “Partisan political warfare”?

That’s how Sen. Arlen Specter (D-Pa.) sees it. Speaking Tuesday in support of Indiana U.S. District Judge David F. Hamilton‘s nomination to the U.S. Court of Appeals for the Seventh Circuit, Specter said:

arlenspecter.jpgSpeaking candidly, perhaps bluntly, Judge Hamilton is a pawn in partisan political warfare. That is the long and short of it. This is the 90th filibuster in the past several months. This follows a pattern, regrettably, that goes back almost two decades, when both sides, Democrats and Republicans at various times, have engaged in filibusters against judicial nominees where there was no justification to do so. It occurred extensively during the Clinton administration. At that time, on the other side of the aisle, I supported many of President Clinton’s nominees. It occurred during the Bush administration, when I chaired the Judiciary Committee, and there were repeated filibusters by Democrats against President Bush’s nominees.

At that time, this Chamber was almost torn apart with the ferocity and intensity of the partisanship, with serious consideration being given to what was called the nuclear or constitutional option, when there was serious consideration given to altering the traditional requirement of 60 votes to end a filibuster. There was a tactic devised to challenge the ruling of the Chair, which could be overruled by or upheld by only 51 votes, and thereby move the judicial nominees without the traditional 60 votes. Fortunately, sanity and tradition prevailed and we worked out a compromise with the so-called Gang of 14 to confirm some and to reject others. Now we find the pattern continues.

It is my hope that at some point we can declare a truce, an armistice, and stop the partisan political warfare. The nomination of Judge Hamilton would be a good occasion to do that. 

Well, there was no truce.

On Tuesday, Republicans tried unsuccessfully to filibuster Hamilton’s nomination, which prompted the Washington Post‘s Dana Milbank to observe: “When you’re in politics, a certain amount of hypocrisy comes with the job. Still, what happened on the Senate floor Tuesday stretched even the senatorial capacity to suspend shame to new levels of elasticity.”

And on Thursday, in a highly partisan vote, the Senate confirmed Hamilton by a 59-39 margin. The only Republican to vote for Hamilton was Sen. Richard Luger of Indiana, who, along with his Democratic colleague Evan Bayh, recommended Hamilton in the first place.

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Actually, TWO nominees confirmed

Yesterday, with the U.S. Senate scheduled to vote on the nomination of Maryland Judge Andre M. Davis to the 4th Circuit Court of Appeals, I wrote about how President Obama’s judicial nominees were getting votes one at a time.

honeywell.jpgWell, Sen. Patrick Leahy (D-Vt.), chairman of the Senate Judiciary Committee, had other plans. As he and Sen. Jeff Sessions (R-Ala.), the Judiciary Committee’s ranking member, discussed Davis’ qualifications, Leahy moved to have the Senate take up the nomination of Judge Charlene Edwards Honeywell (right) for federal judgeship in the Middle District of Florida.

Without objection, the motion was approved, and just after the Senate confirmed Davis by a vote of 72-16, it unanimously approved Honeywell, 88-0. (Honeywell was on the same panel as West Virginia Judge Irene C. Berger that appeared before the Senate Judiciary Committee on Sept. 9. They both passed out of committee on Oct. 1, and Berger was confirmed Oct. 27.)

Once again, Republicans and Democrats sparred over the pace of judicial confirmations by the Senate. During his remarks, Sessions objected to the suggestion that Republicans are responsible for the five vacancies on the 4th Circuit:

sessionsthumb.jpgI find it breathtaking that people would suggest that the Republicans, who tried to fill that vacancy for 9 years and had the nominees blocked, were responsible for vacancies which have been there for a long time. I find that quite an odd thing.

Sessions noted that President George W. Bush nominated four candidates four the 4th Circuit Court of Appeals in 2008, whose nominations expired without any receiving an up-and-down vote by the full Senate.

Some of them never even got a hearing, despite being highly qualified, outstanding nominees. So Judge Davis has done pretty well in getting his case before the Senate and being able to get a vote.

Except the exact same thing happened to Judge Davis when he was first nominated for the 4th Circuit of Appeals by President Bill Clinton in 2000. Davis never received a hearing, and his nomination expired without the Senate ever taking it up. Both parties tend to drag their feet on nominations made during the final year of a lame-duck presidency. That’s part of the way the game is played.

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Another nominee, another individual vote

andredavis.jpgWith the U.S. Senate poised to vote today on another of President Obama’s judicial nominees — U.S. District Judge Andre M. Davis of Maryland (left), it’s worth noting that yet again, the senate is proceeding very deliberately, taking up one judge at a time for confirmation by a floor vote.

Writing recently in response to criticism of Obama’s approach to judicial nominations, University of Richmond law professor Carl Tobias said the real cause of delays in approving Obama’s nominees is a bottleneck at the senate.

The committee has approved 14 federal court nominees, and the real bottleneck has been Senate floor action. Of those 14 nominees, only five have received floor debate and confirmation; nine are pending without GOP consent to consider them. Senator Reid has attempted to cooperate with Senator McConnell and Republicans — but to no avail. For example, McConnell insisted that the Senate consider no lower court nominees until it had confirmed Supreme Court Justice Sonia Sotomayor, which delayed the process until September.

The unanimous consent procedure allows one senator to stop the entire body, and anonymous holds have delayed specific nominees’ consideration. Reid has been reluctant to employ cloture, which forces votes, mainly because this practice wastes valuable floor time. However, on Tuesday, Reid took the unusual step of invoking cloture to secure a floor vote on Southern District of West Virginia Judge Irene Berger. She is the third uncontroversial judicial nominee on whom Reid has been forced to seek cloture. Indeed, the GOP has ratcheted up the stakes with the unprecedented action of placing holds on noncontroversial nominees.

At least thus far, it’s hard to blame the political maneuvering and delay tactics on the quality of the candidates, since once Obama’s nominees actually make it to the senate, they have been approved overwhelmingly. Not counting U.S. Supreme Court Associate Justice Sonia Sotomayor’s 68-31 vote on Aug. 6, the four candidates approved by the full senate have received a grand total of three votes against them, and all of those were cast during the vote that confirmed U.S. District Judge Gerald Lynch to the 2nd Circuit Court of Appeals by a 94-3 margin.

It will be interesting to see if any senators vote against Davis. Sen. Jeff Sessions (R-Ala.) recently said, during the discussion that preceded Judge Irene C. Berger’s confirmation, that Davis’ record as a judge was “a cause for some concern.” Soon, voters will see if any of Sessions’ colleagues share his concerns over Davis — at least enough to vote against him.

bergerthumbnail.jpgFor court watchers, the big news in West Virginia this week was the unanimous confirmation of Judge Irene C. Berger (right) by the U.S. Senate. Tuesday’s 97-0 vote makes Berger the first black judge on the federal bench in West Virginia history.

But Berger’s relatively smooth passage notwithstanding, the confirmation process is apparently becoming more contentious. After Michael A. Fletcher of the Washington Post noted that the Obama administration has submitted fewer names during its first nine months in office than its predecessor, several commentators have suggested that part of the reason so few judges have been confirmed is that Senate Republicans have taken obstructionism to a new level.

In a widely-read piece published Monday, Slate‘s Doug Kendall said that Senate Republicans have slowed the confirmation process to a crawl by delaying up-and-down votes even for candidates unlikely to raise objections.

The emerging Republican strategy is to hold these uncontroversial nominees hostage as pawns in the larger war over President Obama’s agenda and the direction of the federal judiciary. The Senate operates according to a set of arcane rules that allows a minority party to bring the institution to a halt if it chooses to do so. Most bills and nominations pass through the Senate with no debate and only a voice vote on the Senate floor. But this requires every senator to play along. By stonewalling on every nominee so far, Minority Leader Mitch McConnell, R-Ky., is requiring his counterpart, Sen. Reid, to negotiate, or devote precious floor time, for every judicial confirmation.

An Oct. 23 study by Russell Wheeler of the Brookings Institution, a Washington think tank, concluded that the relatively few Obama nominees are receiving speedy hearings before the Senate Judiciary Committee, but little more.

It is too soon to say whether these early developments presage an administration with a less energetic policy on judicial nominations than its predecessor; greater difficulty in identifying qualified candidates, especially non-judges; or a Senate that will not confirm large numbers of nominees because of unchallenged minority delaying tactics—or some combination of all three. 

Part of the issue, Wheeler wrote, may be that Obama is in a position to reshape the federal judiciary in ways that President George W. Bush never could. According to Wheeler, 41 percent of Obama’s nominees to federal District and Appeals courts would replace a Republican nominee, compared to 22 percent of Bush’s judges who replaced Democratic nominees.

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Help wanted: Judicial vacancies in West Virginia

UPDATE: U.S. Sens. Robert C. Byrd and Jay Rockefeller have just recommended state Democratic Party chairman Nick Casey to President Obama for the federal judgeship in the Northern District.

There’s an old aphorism, repeated to me recently by a learned hand in West Virginia politics, that when you win a presidential election, you should immediately start taking over the government.

president_official_portrait_lowres.jpgSome observers, as noted by the Washington Post‘s Michael A. Fletcher, are beginning to wonder when President Obama is going to focus more attention on the 96 vacancies in the federal judiciary. As of Oct. 18, Obama has forwarded 23 nominations for federal district and appeals court judgeships to the Senate for consideration. By comparison, Fletcher wrote, President George W. Bush submitted 95 names over the same period following his election.

To be fair, the Obama administration (unlike its predecessor) has had to contend with an opening on the U.S. Supreme Court, and may be preparing for the possibility of one or two more in the relatively near future, given the speculation surrounding Associate Justice John Paul Steven’s retirement and the apparent precariousness of Associate Justice Ruth Bader Ginsburg’s health. These high-profile appointments may have pushed other judicial nominations to the back burner.

What does this mean for West Virginia? The Mountain State currently has two open seats on the federal bench, one each in the Northern and Southern Districts. Kanawha Circuit Judge Irene C. Berger’s nomination to the opening created when U.S. District Judge David A. Faber took senior status at the end of last year made it out of the Senate Judiciary Committee on Oct. 1. She is now awaiting endorsement by the entire Senate.

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