News Law and Policy

Senate Democrats Change Filibuster Rules, Advance Millett Nomination

Jessica Mason Pieklo

Senate Democrats finally decided to do something about Republican obstruction of judicial nominations.

On Thursday, the Senate invoked the so-called nuclear option, voting to end the filibuster for most judicial nominees and cabinet appointments. The vote changes a Senate rule that had previously required 60 votes to advance an executive nomination to a confirmation vote, which requires only a simple majority to pass. While the rule change does not affect legislation or Supreme Court nominations, it does have the potential to clear a backlog of nominations and address the increasing number of judicial emergencies created by Republican obstruction.

The 52-48 vote came after Senate Republicans were set to filibuster again the nomination to the D.C. Circuit Court of Appeals of Patricia Millett, a Washington lawyer who has worked in both Republican and Democratic administrations and who is just one of three recent nominees to the D.C. Circuit Court of Appeals blocked by Senate Republicans. Like Millett, the other nominees, including Georgetown Law professor Nina Pillard and D.C. Circuit Judge Robert Wilkins, all have a majority of support in the Senate for confirmation. But Senate Republicans have used the filibuster to block those nominations from advancing while they try desperately to maintain control over both the D.C. Circuit Court of Appeals and the federal judiciary in general.

The impact of the rule change was immediate, as the Senate then voted 55-43 to advance Millett’s nomination. The Senate must now vote for her confirmation, which could happen as early as Friday, or, more likely, after the Thanksgiving recess.

Doug Kendall, president of the Constitutional Accountability Center, a progressive think tank and public interest law firm praised the change in a statement. “The Founders designed our Constitution to be, by and large, a majority-rule document. Senator Reid’s decision today returns to that founding vision, limiting the filibuster which has become an extra-constitutional tool allowing the minority to gum up our democratic process,” said Kendall.

Like This Story?

Your $10 tax-deductible contribution helps support our research, reporting, and analysis.

Donate Now

Marge Baker, executive vice president of People for the American Way, praised the move as a means of getting ending the Senate backlog on judicial nominees in a statement. “The fact that there’s now a path forward to the confirmation of these three extraordinarily qualified D.C. Circuit nominees is unquestionably good news,” said Baker. “We are thrilled that President Obama’s D.C. Circuit nominees and the other federal judicial nominees waiting for Senate votes will finally get the fair consideration that they deserve. Senate Republicans have refused to do their jobs for far too long. It’s time to get the Senate working again.”

The move by Senate Democrats is not without risk. Sen. Charles Grassley (R-IA), a key proponent of the strategy to tie up judicial appointments, has already promised that as soon as Republicans control both the White House and the Senate they will eliminate the filibuster for the Supreme Court as well. But Democrats were left with little choice after Senate Republicans made obstruction and nullification their governing strategy. “Republicans’ abuse of Senate rules during this administration has been astounding,” Baker said. “While President Obama has made an effort to work with Republican senators to nominate fair, accomplished judges, Republicans have blocked his nominees at every turn, often for no reason other than the fact that it was President Obama who nominated them.”

According to analysis by the People for the American Way, Republicans were on an unprecedented pace to filibuster at least 40 presidential nominees. And with filibuster abuse just one example of many used by the right to employ this strategy, there was never any guarantee that Grassley’s threat wouldn’t have come true even if Senate Democrats didn’t vote to curb the filibuster. “This irresponsible obstruction is part of a larger effort by Republicans in Congress to nullify laws they don’t like and overturn the results of elections that they lost,” said Baker. “This profoundly anti-democratic approach to governing shut down our federal government, and threatened to shut down our courts.”

Commentary Law and Policy

Republicans Make History in Obstructing Merrick Garland for Supreme Court

Jessica Mason Pieklo

Merrick Garland is now officially the longest Supreme Court nominee to go without confirmation hearings or a vote in U.S. history.

Merrick Garland, President Obama’s selection to replace Justice Antonin Scalia, now has the dubious distinction of being the longest U.S. Supreme Court nominee ever to go without a vote to confirm or reject his appointment, thanks to Senate Republicans’ refusal to do their jobs.

I can’t say it any differently. This has been an utter, total failure by grown men, and a few women, in the Senate to do the kind of thing they’re supposed to in exchange for getting paid by the rest of us. And after nearly a decade of unprecedented—and I mean unprecedentedobstruction of President Obama’s judicial nominees writ large, there’s no flowery language that can capture how our federal courts’ slow burn on the the Republicans’ watch has now caught full fire with the fight over Garland’s nomination.

Instead what we have are dry, hard facts. A century ago, Justice Louis Brandeis was forced to wait 125 days before his confirmation to become the first Jewish justice on the Court. Justice Scalia died on February 13 of this year. President Obama nominated Garland on March 16. Wednesday marked 126 days of zero Senate action on that nomination.

And since Congress is now on recess, that won’t be changing anytime soon.

Like This Story?

Your $10 tax-deductible contribution helps support our research, reporting, and analysis.

Donate Now

It’s not just that the Senate hasn’t held a vote. They have held no hearings. Several senators have refused to meet with Garland. They have taken. No. Action. Not a bit. And here’s the kicker: None of us should be surprised.

President Obama had no sooner walked off the Rose Garden lawn after announcing Garland’s nomination in March than Senate Republicans announced their plan to sit on it until after the presidential election. Eight months away. In November.

Senate Republicans’ objection isn’t to Garland himself. He’s a moderate who has generally received bipartisan praise and support throughout his career and should, on any other day, sail through the confirmation process. As compared with both of President Obama’s other appointments, Justices Sonia Sotomayor and Elena Kagan, Garland is practically a gift to Senate Republicans in all his moderate-aging-white-guy-ness. I mean, who would have thought that of all the nominees Republicans were going to double-down their obstruction efforts on, it would be Justice Dad?

Instead, their objection is to the fact that the democratic process should guarantee they lose control of the Supreme Court. Unless, of course, they can stop that process.

Conservatives have spent decades investing in the federal courts as a partisan tool. They did so by building an infrastructure of sympathetic conservative federal judges through appointments when in executive power, and by blocking liberal attempts to do the same when in the political minority. It’s an investment that has largely paid off. Federal circuit appeals courts like the Fifth, Sixth, Eighth, and Tenth issue reliably conservative opinions regularly, thanks to aggressive appointments by conservatives during the Reagan and Bush years.

Meanwhile, thanks to conservative obstruction under Democratic administrations—most egregiously under President Obama—71 district court seats currently sit vacant. Twenty-four of those seats are in jurisdictions considered by the courts themselves to be judicial emergencies: places where the caseload is so great or the seat has remained vacant for so long the court is at risk of no longer functioning.

It’s easy to see why conservatives would want to keep their grip on the federal judiciary given the kinds of issues before it: These are the courts that hear immigration and detention cases, challenges to abortion restrictions, employment discrimination cases, as well as challenges to voting rights restrictions. Just to name a few. But as long as there are no judges, the people being directly affected are left in limbo as their cases drag on and on and on.

Our federal courts of appeals are no better. Nine federal appellate seats sit vacant, five in jurisdictions deemed judicial emergencies.

These vacancies have nominees. Senate Republicans just refuse to confirm them.

And no, the other side doesn’t do this. Federal judgeships have always been political. But never have the Democrats used the judiciary as a blatantly partisan extension of their elected members.

The refusal to vote on Garland’s nomination is the most visible example of the conservatives’ drive to maintain control over the federal courts, but it’s hardly their most blatant display of sheer partisanship. I’m guessing that is yet to come when, should they lose the presidential election, Senate Republicans face the choice of quickly confirming Garland or continuing their stand-off indefinitely. And given what we’ve seen of the election cycle so far, do we really think Senate Republicans are going to suddenly grow up and do their jobs? I hate to say it, folks, but Merrick Garland isn’t getting confirmed anytime soon.

News Politics

Colorado Republicans Pick Anti-Choice County Commissioner for U.S. Senate Race

Jason Salzman

Darryl Glenn, an anti-choice Colorado Springs County Commissioner, defeated a pro-choice GOP rival and three other anti-choice Republicans in the race to take on pro-choice Sen. Michael Bennet in November.

In Colorado’s Republican senatorial primary Tuesday, Darryl Glenn, a conservative county commissioner from Colorado Springs, scored a decisive victory over Jack Graham, a former Colorado State University official, who stood out from the GOP field of five candidates for his atypical pro-choice stance.

Glenn received about 38 percent of the primary vote versus nearly 25 percent for Graham, who finished second.

Glenn made no secret of his anti-choice stance during the primary election, describing himself in interviews as an “unapologetic Christian, constitutional conservative” and supporting “personhood” rights for fertilized human eggs (zygotes), a stance that could outlaw abortion and many forms of contraception.

Consistent with this, Glenn is also opposed to the Roe v. Wade decision.

Like This Story?

Your $10 tax-deductible contribution helps support our research, reporting, and analysis.

Donate Now

Glenn frequently brought up his faith in interviews. For example, Glenn broke out from his Republican rivals at the GOP state convention in April, where he gave an impassioned speech during which he discussed Planned Parenthood and opposing abortion ​before delegates voted him on to the GOP primary ballot.

Asked about the speech by conservative radio host Richard Randall, Glenn said, “Well, that wasn’t me. That was the Holy Spirit coming through, just speaking the truth.”

Seriously?” replied the KVOR radio host.

Absolutely,” Glenn replied on air. “This campaign has always been about honoring and serving God and stepping up and doing the right thing.”

Political observers say Glenn’s position on abortion, coupled with his other conservative stances and his promise never to compromise, spell trouble for him in November’s general election against Democratic Sen. Michael Bennet.

“Glenn’s stance on abortion isn’t necessarily disqualifying,” Jennifer Duffy, senior editor of the Cook Political Report, which offers non-partisan election analysis, in Washington D.C., told Rewire via email. “Colorado has sent pro-life Republicans to the Senate. But, the cumulative effect of all Glenn’s conservative positions on social, economic, and foreign policy, as well as his association with Tea Party-affiliated groups and his lack of funding make it very, very difficult to see a path to victory for him.”

In the final weeks of the primary, Glenn was supported by Sen. Ted Cruz (R-TX) and former Alaska Gov. Sarah Palin.

Glenn’s ties to the right wing of the Republican Party drew criticism during the campaign from GOP Senate Majority Leader Mitch McConnell. He criticized Glenn for accepting the endorsement of the Senate Conservatives Fund, which gave Glenn $500,000.

Duffy doesn’t expect the race to be “very competitive,” an observation that aligns with the “Democrat favored” assessment of the race by the Rothenberg & Gonzales Political Report. Last year, Bennet was widely considered one of only two vulnerable U.S. Senate Democrats.

“Darryl Glenn’s support for ‘personhood’ puts him on the wrong side of Colorado voters’ values, including many pro-choice Republicans and unaffiliated voters,” said Karen Middleton, executive director of NARAL Pro-Choice Colorado, in an email to Rewire. “Support for reproductive freedom crosses party lines in Colorado, as demonstrated by the landslide losses by three ‘personhood’ ballot measures. Glenn’s chances of beating pro-choice champion Michael Bennet were already slim. This puts it closer to none.”

Glenn did not immediately return a call for comment.

In 2014, U.S. Sen. Cory Gardner (R-CO), who is anti-choice, defeated pro-choice Democratic Sen. Mark Udall, who hammered Gardner on his abortion stance throughout the campaign. 

Gardner threw his support behind Glenn Wednesday, reportedly saying to Roll Call that Glenn has fundraising challenges ahead of him but that he’s “winning when nobody expected him to.” And that, Gardner was quoted as saying, “bodes well for November.”