Respectfully Submitted by Lawrence Rafferty(rafflaw)-Guest Blogger

Now that I have gotten over the Bears overtime loss to the Bronco’s, it is time for the Night Shift to get to work.  I imagine that most of us remember the so-called “Gang of Fourteen” that came to prominence during the George W. Bush Administration.  This group of Senators actually decided that the Senate should give all Judicial nominees an up or down vote in the full Senate except in some very extreme circumstances. “In 2005, a group of senators known as the “Gang of 14” determined that all judicial nominees should receive an up-or-down vote absent “extraordinary circumstances.”  As Senator Lindsey Graham explained the agreement at the time,’ “ideological attacks are not an ‘extraordinary circumstance.’ To me, it would have to be a character problem, an ethics problem, some allegation about the qualifications of a person, not an ideological bent.” ‘ American Constitution Society  It is a shame that the Gang of Fourteen, or at least the survivors of that group have decided that politics is more important than fairness!

I guess I should not be surprised at anything that goes on in politics these days, but I have to admit that I am a bit surprised the Senate continues to filibuster legitimate Judicial nominees from President Obama at an unprecedented rate. I should have taken Senator McConnell’s warning to heart when he suggested that it was his job number 1 to prevent Obama’s reelection in 2012.  “If Republicans are to enjoy a midterm triumph in 2010 as they did in 1994, McConnell said his party should say: “Those of you who helped make this a good day, you need to go out and help us finish the job.”  Asked what that “job” was, McConnell explained that “the single most important thing we want to achieve is for President Obama to be a one-term president.”  LA Times   Senator McConnell and his fellow Republicans in the Senate have done everything in their power to filibuster and prevent judicial nominations from President Obama from being confirmed by the Senate.  Earlier this week, the latest example of the misuse of the Filibuster was again on display.

The judicial nomination of Caitlin Halligan to the U.S. Court of Appeals for the D. C. Circuit was hijacked by a Republican filibuster and the attempt to get a vote on the floor of the Senate was blocked when Harry Reid brought the cloture motion to a vote.  The motion to move her nomination to a full vote received 54 votes, but not the 60 necessary to defeat the filibuster brought on by the Senate Republicans.  Aren’t there any members of that Gang of Fourteen still around to make sure that judicial nominees actually get a vote?  The answer is yes, but every former member of the Gang of Fourteen from the Republican Party who is still in the Senate,  voted against the cloture motion.

“But today, Graham voted against holding an up-or-down vote on Halligan’s confirmation, even though she had been unanimously rated well qualified by the American Bar Association, and had the broad support of law enforcement officials in New York State, where she served as solicitor general.  Graham and the three other Republican members of the “Gang of 14” who remain in the Senate, — Sens. John McCain, Susan Collins and Olympia Snowe — also voted to filibuster Goodwin Liu, another nominee whose credentials were widely praised as “sterling” and who had the support of legal leaders from across the ideological spectrum.”  ACS  I find it disturbing that when a Democratic President is in the White House, the Republicans in the Senate seem to forget fairness.  When the Gang of Fourteen was in its heyday, it allowed many Right leaning judges to be voted on and confirmed by the full Senate.

The former ethics lawyer for George W. Bush also thinks that this Republican obstructionism is out of hand. “In a recent ACS Issue Brief, “Extraordinary Circumstances: The Gang of 14 and a Proposal for Judicial Nominations Reform,” law professors Richard Painter and Michael Gerhardt explain senators’ betrayal of their 2005 agreement:  The Gang of 14 had hoped that their bipartisan compromise would facilitate judicial appointments and remove ideological differences as a ground of objection to a nomination as long as the nominee’s views were within the mainstream of American jurisprudence and he or she had sound character and no serious ethical lapses.  Instead, judicial filibusters, among other means of obstruction within the Senate, have been persistently directed at judicial nominees on the basis of speculation and distortion. These tactics have prevented the federal judiciary from operating at full strength, and have made the process of judicial selection unpredictable for everyone concerned, including the White House, the Senate, and the nominees.”  ACS

Even though Chief Justice Roberts himself has called for an end to the confirmation stalemate because the Federal Judiciary is struggling with an extreme vacancy problem, the Senate Republicans still refuse to stop their obstructionism. “Chief Justice John Roberts is blaming both parties for the political stalemate that’s prevented dozens of federal judicial nominees from filling their seats at the bench.  In his annual State of the Judiciary report, Roberts said the partisan bickering has led to “acute difficulties” in “critically overworked districts.” He urged policymakers to come up with a long-term solution to the perennial problem.  “Each political party has found it easy to turn on a dime from decrying to defending the blocking of judicial nominations, depending on their changing political fortunes,” Roberts wrote in the 12-page report.  ” ‘ This has created acute difficulties for some judicial districts. Sitting judges in those districts have been burdened with extraordinary caseloads.” ‘  The Hill

It is interesting that Justice Roberts blames both parties when his party is responsible for the filibustering the very judicial nominees that he is calling for.  How do we solve this backlog problem and stop the filibusters?  The Democrats could insist on rule changes that would make it harder for any party to filibuster a Judicial nominee.  It has been suggested before that the rules should be changed to require that any Senator who wishes to filibuster a Judicial nominee, that the Senator must go to the floor of the Senate and do a real filibuster.  That’s right, make them stand up for hours to show the American public who is fighting this nominee and why.  Filibusters used to be done this way, but now all they have to do is inform the leader that he or she has a problem with the nominee and the 60 vote minimum takes over.  Our Democracy is based on majority rule, but a minority of Senators has stopped Judicial nominees at the drop of a hat.

It is time to call out the Senators who abuse this process.  Senators like Sen. Graham, Senator Coburn, Sen. McCain and Senator Snowe need to be know that the American public will understand and see what sleight of hand tricks they are playing in their efforts to obstruct the people’s business.  That also means the mainstream media must stop reporting these cloture votes incorrectly.  They all too often claim that the vote on the nominee failed or that it failed to obtain the necessary 60 votes.  A cloture vote is not an up or down vote by the whole Senate.  It is merely a vote to see if the Senate can garner the necessary 60 votes to defeat the Filibuster!  It is also time for Democratic and Independent Senators to do everything that they can to call out the names of each Senator who blocks a nominee from getting their up or down vote in the Senate. Publicly and repeatedly.

The whole world is watching and they don’t like what they see.  If the judicial nominee logjam does not end, it means delayed justice for all of us, Democrats and Republicans and Independents alike.  Of course, if your only goal is to defeat a specific administration, I guess Justice doesn’t matter to you.  How do you think the Senate should solve this problem?