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All forward progress anyway.

Americans elected President Obama in 2008 with great hopes and an insatiable thirst for change. It was as palpable as it was heartfelt. But through recalcitrance and institutionalized obstruction the Republicans in Congress soon dashed those fervent hopes, and poured sand down the collective throats of Americans' thirsting for meaningful change in Washington.

But congressional Republicans didn't act alone. They had a partner in crime; a co-conspirator in D.C. operating for the most part under the proverbial radar. In fact, for every initiative or progressive piece of legislation the president had blocked by Senate Republicans, their co-conspirators in the D.C. Circuit Court of Appeals right down the road blocked three or four, and worked steadily to weaken some of those passed by President Clinton... and Carter... and even Nixon, at the same time.

We just never heard about a good number of them.

A decade or two from now, President George W. Bush's legacy will not only be that it was under his watch(sic) that 9-11 happened -- at least on the conservative side. Nor will it only be that it was under his administration that arguably the most undemocratic piece of legislation passed by the U.S. Congress in the last century, i.e., The Patriot Act, was signed into law. And, unfortunately, I doubt it will even be the unjust wars of choice or the neocon-conspired war on terror that the Bush administration will be remembered for most. Conservatives, will no doubt attempt to marginalize those issues. And with the concerted aid of a compliant media they just might be successful in their efforts.

But even a propaganda-laden media cannot ameliorate what Americans are feeling everyday of their lives; the issues that profoundly touch each and every one of us in significant ways. Face it, unless they're caught up in the middle of such things, issues like war and foreign policy don't directly affect most Americans. But issues like corporate regulations, environmental policy and food and water safety DO affect ALL of us. They are intertwined and debilitating if enacted without the best interests of the People at heart. And those are the issues under continuous assault by the little known but surprisingly powerful D.C. Circuit Court of Appeals -- packed to the brim by President George W. Bush with rabid conservatives -- bought and paid for by huge corporations.

The diabolical duo consisting of Senate Republicans and the D.C. Court is effectively controlling Washington. And that includes the conversation emanating from it.  

In my estimation it'll be the courts for which heir Bush will be remembered. The far-right ideological judges and justices that Bush installed on courts all across the land (with little resistance from congressional Democrats) are responsible for one of the most radical far-right turns in American jurisprudence history; a turn from which America may not recover for generations. That's what the Bush legacy will look like. And that legacy will not come cheap. Americans, both of this generation and most likely the next, will all pay a clear and dear price for the younger Bush's ignominious role as commander-in-chief despot-wannabe. Yet conservatives will no doubt rejoice.

To get an idea of just how influential the D.C. Court of Appeals is on political issues in Washington during the Obama era; one only has to look at the sheer volume of cases heard there each year, as opposed to the relatively few cases seen by the Supreme Court -- in itself not even close to being a bastion of liberalism.

But I digress.

The disparity between the two judicial venues is stunning to say the least. While the SCOTUS chose to hear a total of 79 cases during the 2011-2012 period; the D.C. Circuit Court of Appeals heard nearly twelve hundred cases during the same time period. And only a tiny percentage of those Appeals Court decisions were overturned by their counterparts at the higher court. The appeals court has acted more or less as a clearinghouse of sorts for some of the most unpublicized but no less important cases affecting every American at one time or another during their lives.

For his part, President Obama sure didn't do himself (or us) any favors by getting off to such a slow start on nominating judges. He's not blameless. And I'm sure he'd do it differently had he another bite of the apple. But such as it was and is, Senate Republicans took full advantage of the president's late start in the nominating process. At this point, he's yet to get a single judge appointed to the appeals court in the D.C. Circuit. That's going on five years without an appointment to a court that still has four open seats out of the eleven seat court.

The overall strategy should be plain as day to any progressive by now. The Republicans are using the Harry Reid filibuster to block all potential liberal nominees, essentially protecting the overwhelming conservative majority even if it means defying the president by keeping the seats that would balance the court empty for as long as they possibly can. Meanwhile, the court continuously undermines the president's current agenda with the majority they have whilst doing away with regulations enacted before Obama's terms began, regulations meant to protect the environment, food and drug safety, consumer rights and a whole host of other aspects of everyday life, including workers' rights and general public safety.

People for the American Way (PFAW) recently released an extensive report: AMERICA’S PROGRESS AT RISK: RESTORING BALANCE TO THE DC CIRCUIT COURT OF APPEALS that outlined the untenable situation in which we find ourselves.

President Obama is the first president since Woodrow Wilson to fail to have a single nominee confirmed to the D.C. Circuit during his first full term in office.
Incidentally, President Obama's first nominee to the D.C. Circuit, Caitlin Halligan, despite being demonstrably qualified, was blocked [not once but] twice by Senate Republicans using Harry Reid's filibuster.

Here's a short list of some of the D.C. court's recent evildoing. Some you may be aware of... and some perhaps not.

Noel Canning v. NLRB:  In January, the D.C. Circuit invalidated three presidential appointments to the National Labor Relations Board, undermining the Board’s ability to protect the rights of workers and giving the green light to Senate Republicans who wish to decimate any federal agency by blocking appointees.
EME Homer City Generation v. EPA: In 2012, the D.C. Circuit sided with utility companies to strike down EPA air pollution regulations that would have prevented an estimated 34,000 premature deaths and saved $280 billion a year in healthcare costs.
Business Roundtable v. SEC: In 2011, the D.C. Circuit overturned an SEC rule requiring greater accountability from corporations to their shareholders in selecting board members. One observer noted that in doing so the judges – none of them securities experts – had “waded into a political fight under the guise of dispassionate scientific oversight.”
RJ Reynolds Tobacco v. FDA: Last year, the D.C. Circuit ruled that FDA regulations requiring cigarette manufacturers to place graphic, factually accurate warnings on their product violated tobacco companies’ First Amendment free speech rights.
Hein Hettinga v. USA: George W. Bush nominee Janice Rogers Brown used a case about milk market regulation last year to issue a call to arms against eight decades of progressive reforms. Courts that have allowed the government to implement reasonable regulations of industry have, she said, put “property…at the mercy of pillagers.”
And by "property" I think we can safely assume she's really talking about protecting corporate profits.

I don't know how the administration extracts itself from this deep, ideological morass, and puts this country back on a progressive path. I do know however, that the blame only lies in part on the president's learning curve. In my humble opinion, Senate Majority Leader Harry Reid will forever carry the bulk of the blame for this ongoing travesty of social injustice. Why he didn't change the filibuster rule while he had the chance I'll never know. I used to respect and admire his legislative skills. But not anymore. Whether he himself realizes it, Harry Reid has done more to thwart the president's legislative agenda than any other single player on the Washington stage.

I certainly hope awareness spreads regarding this ongoing disaster. I also hope the state of Nevada wakes up and subjects the ne'er-do-well senate majority leader to a decent primary.

WTF did you think would happen, Harry?

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Comment Preferences

  •  It's nullification of Presidential and Senate (16+ / 0-)

    election results, but with the complicity of the party that won the election.

    Government and laws are the agreement we all make to secure everyone's freedom.

    by Simplify on Thu Apr 04, 2013 at 05:35:57 AM PDT

  •  Amazing (5+ / 0-)

    Every time I think we've finally got a handle over how fucked things are, it turns out the problem is even worse.

  •  The damage of the Bush years (5+ / 0-)

       just keeps accumulating. Bush, Rove and Cheney spent 8 years remaking the federal government into an instrument for the wealthy and powerful. As Shakespeare said "The evil that men do lives after them; the good is oft interred with their bones."

  •  For decades, movement conservatism has used (4+ / 0-)

    the far far right Federalist Society to recruit, train, develop, and insert their lackeys into the legal system.  This strategy has been way-successful.  The federal judiciary is now full of these people. Not just the SC.

  •  We old fart political junkies saw (2+ / 0-)
    Recommended by:
    markthshark, patbahn

    this coming ( I was born in Washington, D.C.). Unfortunately, our very tiny voice was more than drowned out. T and R!!

    Some people make u want to change species! --ulookarmless, quoted w/his permission: RIP good man.

    by orlbucfan on Thu Apr 04, 2013 at 06:00:10 AM PDT

    •  Now we know why the '2000 election was... (2+ / 0-)
      Recommended by:
      TracieLynn, cybersaur

      important to them enough to steal... literally.

      "That men do not learn very much from the lessons of history is the most important of all the lessons of history." ~ Aldous Huxley

      by markthshark on Thu Apr 04, 2013 at 06:11:14 AM PDT

      [ Parent ]

      •  It's why the notion that there was no difference (3+ / 0-)
        Recommended by:
        markthshark, jfromga, edrie

        between Bush and Gore will go down in history as one of the most amazing examples of fantastical bullshit ever swallowed by gullible American voters. To suppose that Al Gore would have packed the Federal courts with the rabid wingnut conservatives that Bush did is just another strand of this bullshit, which is why a century from now Ralph Nader and his gigantic preening ego will be regarded as one of the most malign, destructive individuals in American history.

        •  I sincerely doubt 9-11 would have ever happened.. (0+ / 0-)

          if Gore had been president as well. The Clinton administration had all the counterterrorism intelligence infrastructure in place after the embassy bombings in Africa.

          Gore would have paid close attention to those portentous PDBs he got every morning.

          "That men do not learn very much from the lessons of history is the most important of all the lessons of history." ~ Aldous Huxley

          by markthshark on Thu Apr 04, 2013 at 07:23:02 AM PDT

          [ Parent ]

        •  if i believed in such things, i would have to (1+ / 0-)
          Recommended by:

          place nader's name foremost in the category of "antichrist".

          EdriesShop Is it kind? is it true? is it necessary?

          by edrie on Thu Apr 04, 2013 at 07:38:08 AM PDT

          [ Parent ]

  •  Couple things (2+ / 0-)
    Recommended by:
    rigcath, Victor Ward

    1.) This should really be centered on Sri Srinivasan who is a current nominee for the DC Court of Appeals and even conservative legal scholars are urging the Senate GOP to give him a swift confirmation.  I mean when Ken Starr is writing his Senator for an Obama nomination I think we can agree this guy should be above partisan bullshit.

    2.)  Obama has appointed 174 justices to the Federal Bench.  The most recent being Richard Taranto, who was confirmed on March 12th to the Appellate Court of the Federal Circuit with a full Senate vote of 91-0.   He also put two judges on the bench in February, one to the 1st Circuit, and one to the 10th.

    3.) George Bush appointed 325 justices to the Federal Bench (including 2 to SCOTUS).  Clinton appointed 373 (including 2 to SCOTUS).  So Obama at 174 is on pace to out-appoint Bush over a full 8-year term.

    Красота спасет мир --F. Dostoevsky

    by Wisper on Thu Apr 04, 2013 at 06:20:08 AM PDT

    •  Appreciate the info but this diary is centered... (2+ / 0-)
      Recommended by:
      RF, cybersaur

      on the D.C court because of the significance of both the issues and the decisions the D.C. court made regarding those issues. Not to diminish the importance of all potential appointees but the fact is; Senate Republicans are concentrating their obstruction on the D.C. Court for a reason. It's essentially a lawsuit clearinghouse.

      That court is basically unaccountable. Armed with both lifetime tenure and a socially destructive agenda the D.C. Court is the single biggest [long-term] threat to progress in this country. And most liberals don't even know about it.

      What you have there in your comment is potentially a whole 'nother diary... perhaps for another day.

      "That men do not learn very much from the lessons of history is the most important of all the lessons of history." ~ Aldous Huxley

      by markthshark on Thu Apr 04, 2013 at 06:58:26 AM PDT

      [ Parent ]

    •  Obama doesn't create (1+ / 0-)
      Recommended by:

      the vacancies,  I think what is more telling is that there are twenty some people not yet confirmed, and over 80 empty seats between the Court of Appeals and the District Courts not yet filled.   And the reason he isn't filling them is partisan bs to keep a very conservative judiciary in place.

  •  We need a new term to describe the (2+ / 0-)
    Recommended by:
    markthshark, leema

    mutual interest society that is the corporatocracy. What we have is the officers of private and public corporations working in tandem to assure their own security as participants in immortal organizations. That natural persons die becomes irrelevant as long as the organizations they manage, while they live, continue on after them. If crime is deprivation, then legally organized corporations are criminal organizations and where the Mafia went wrong was in not getting registered with some Secretary of State. Corporations are organized to deprive -- i.e. to perpetrate crime under cover of law. They got their start in the Americas when the crowned heads of Europe issued charters and grants to companies on the basis of which they could stake a claim to new lands and which the armies of the royals were then empowered to defend. It's the rule of law.  A marvelous invention.

    Corporations are organized to exploit resources. They are the vehicles by which the ex-men take from Mother Nature and from their fellow men by legislating their deprivation.
    Natural parasites die along with their host, if their behavior is immoderate. The members of artificial bodies can be as immoderate as they like because the corpus does not die. In a sense, the invention of the corporation (public or private) enables natural persons to evade nature's limits. The man-made corporation can be as toxic as it wants because there are no natural limits to its existence. It can lay waste to one resource base and just move on to the next.

    Corporatocracy is the merger of man-made bodies with the rule of law.

    We organize governments to deliver services and prevent abuse.

    by hannah on Thu Apr 04, 2013 at 06:21:12 AM PDT

  •  Oh, and... (5+ / 0-)
    Recommended by:
    exterris, rigcath, RF, leema, Simplify

    I know that I personally would not support removing the filibuster for judicial appointments.  We relied on that filibuster, most often led by Leahy, to block a LOT of GWB appointments.

    Anyone know who Miguel Estrada is?  No?  Well, let me tell you who he is NOT.  He is NOT a Federal justice to the Court of Appeals for the DC Circuit.  Why?  Because the Democrats led the first ever successful filibuster of a appeals court nominee.  We did that, not the GOP obstructionists.  And we were RIGHT to do it.

    Priscilla Owen is unfortunately a judge now even though we held up her nomination for over 4 years.  However, this was Bush's original choice to replace Sandra Day O'Connor until we made it clear that we would filbuster without end if they tried to bring that nomination to the Senate.  ..still, she made it to the Court of Appeals for the 5th circuit, and what happened?  Well, lets see in 2010 she ruled in Doe v Silsbee Independent School District a high school cheerleader was raped by a basketball player and refused to cheer for her unconvicted rapist.  The school the kicked her off the cheerleading squad and she sued.  Owen ruled not only was the school "right" but that the girl's family had to pay the school district $45,000 for legal fees for this "frivolous lawsuit".

    Yeah... the filibuster has a purpose and this is the kind of shit we used it to fight for EIGHT YEARS under BuschCo.  We didn't always win, but Leahy led some great fights against extremeism.  Pardon me for not wanting to rush to get rid of it now that we have "our guy" in office under the delusion that we will never need this again to keep the next Priscilla Owen or Janice Roger Brown or Charles Pickering or William H. Pryor or William Gerry Myers III or David McKeague or Carolyn Kuhl or Henry Saad...

    ..the list goes on.  It will always go on.

    Красота спасет мир --F. Dostoevsky

    by Wisper on Thu Apr 04, 2013 at 06:35:16 AM PDT

    •  A trip down amnesia lane (2+ / 0-)
      Recommended by:
      RF, edrie

      Wow... I havent sifted through all these names in a long time.

      Carolyn Kuhl.. that was an interesting fight.  She was one we went after right away... she was part of the legal team that got Bob Jones University its tax-exempt status back despite the institutionalized racism.   She fought to overturn Roe v Wade and helped draft the brief Reagan's solicitor general used to argue in front of the SCOTUS in Thirnburgh.

      And then the big case in California where a woman sued because her doctor allowed a pharmaceutical salesman to observe her breast exam and the two of them stood in the room when the doctor ordered her to undress.  She said she got flustered and the man just laughed at her and told her to "get on with it".  She thought he was another doctor and only found out afterwards that he was a 3rd party salesman.  She sued... Kuhl threw out part of the suit because the woman didn't specifically ask that the man (who she thought was a doctor) leave the room and Judge Kuhl told her that in the doctor's office getting an oncological breast exam "I think it cannot be said that there was a reasonable expectation of privacy".

      There is a tradition in the Senate that if the senators from a judicial nominee's home state do not approve of the judge, they don't get a hearing.  Boxer and Feinstein both opposed Kuhl from Day 1.  Hatch ignored them, granted a hearing, passed her out of committee on a partisan vote and we filibustered her on the floor, led by Leahy, and the GOP could only get a 53-43 cloture vote.  

      Oh they cried... "defying the will of the majority", "abuse of advise and consent" , "up or down votes!", "nuclear option", "Presidential prerogative" ...whatever.  We used the filibuster and the rules of the Senate to keep this woman from a very powerful appointment on the Federal Bench.

      ...and now you want to eviscerate these powers as if we will never need them again?  

      Красота спасет мир --F. Dostoevsky

      by Wisper on Thu Apr 04, 2013 at 06:50:14 AM PDT

      [ Parent ]

    •  I want to keep listing these (2+ / 0-)
      Recommended by:
      RF, edrie

      Peter Keisler... co-founder of the Federalist Society.. first put up for the 4th Circuit Court of Appeals in 2001. Mikulski and Sarbanes rallied support from the Maryland Bar to dismiss his qualifications and stopped the nomination before it left the White House.

      Kiesler goes on to argue for the government in Hamdan v Rumsfeld in the Circuit court, in the appeal and then served on the legal team for the SCOTUS hearing to help defend the Detainee Treatment Act.  He personally led the legal fight stopping Sabin Willett's appeal for the Uyghur captives left lingering in Gitmo to establish precedent that captives could not legally challenge the Combatant Status Review Tribunals.

      Bush even made him acting Attorney General until Michael Mukasey was confirmed.

      He got put up for the DC Circuit in 2006 to take over John Robert's spot after he went to the SCOTUS.  Hatch granted the hearing.. we threatened a filibuster.. the vote never came to teh floor.

      Bush renominated him in 2007, the Judiciary Committe, now under Leahy, refused to even grant a hearing.  In 2008 he "withdrew his nomination" and returned to private practice in DC.

      BLOCKED.  Mission Accomplished to keep this rethug from yet another powerful position.  This is why Senate rules exist.  This is why we use them.  Why would we want to gut them?

      Красота спасет мир --F. Dostoevsky

      by Wisper on Thu Apr 04, 2013 at 07:05:44 AM PDT

      [ Parent ]

      •  First off, I never said anything about eliminating (0+ / 0-)

        the freakin' filibuster. I said "change" it. And that's exactly what needs to be done. It should be used with due discretion and great deliberation -- not pervasively just to gum up the works, and block everything a president wants to do. That's not how our government is supposed to work.


        Second... stop filibustering. lol

        "That men do not learn very much from the lessons of history is the most important of all the lessons of history." ~ Aldous Huxley

        by markthshark on Thu Apr 04, 2013 at 07:15:43 AM PDT

        [ Parent ]

        •  Well fair enough.. I'll stop (2+ / 0-)
          Recommended by:
          edrie, markthshark

          I might make these into a diary on a day when I have time, but I take your point.

          However, I do think it relevant that you are focused on the DC Court of Appeals and there had never in the history of the US been a filibuster of an appellate nomination to ANY court of appeals much less the DC Circuit, which is arguably the highest.... until the Democrats did it to block Bush.

          I was very thankful when we did that.  I still think it was the right thing to do.  The fact that its now used against us is to be expected and I am comforted by the fact that we will use it again to stop the next GOP president from nominating wingnuts.

          I would prefer that Reid leave the Judicial Nomination process as is.  

          Красота спасет мир --F. Dostoevsky

          by Wisper on Thu Apr 04, 2013 at 07:22:00 AM PDT

          [ Parent ]

          •  sigh... i wish we could ALL "filibuster" the (1+ / 0-)
            Recommended by:

            republicans - the ACTUAL republicans!

            that's why the 2010 elections still bother me so much - we had the chance and blew it.  there should have been overwhelming turnout for the house and senate - yet, some sat home crying in their milk because they didn't get everything they wanted.

            sometimes i just have to shake my head in disbelief at how quickly the left forgets in the short term while the republicans NEVER forget!  

            EdriesShop Is it kind? is it true? is it necessary?

            by edrie on Thu Apr 04, 2013 at 07:43:13 AM PDT

            [ Parent ]

          •  It's just used too pervasively right now... (1+ / 0-)
            Recommended by:

            Democrats used it but not like this. When a president hasn't been able to appoint ONE judge to a court with the significance of the D.C. Circuit Court of Appeals in going on five years... something's terribly wrong with the opposition party.

            They're perverting the whole meaning of the filibuster rule.

            Thanks, and good luck on the diary!

            "That men do not learn very much from the lessons of history is the most important of all the lessons of history." ~ Aldous Huxley

            by markthshark on Thu Apr 04, 2013 at 07:56:52 AM PDT

            [ Parent ]

            •  okay, but (0+ / 0-)

              It took Bush 3 years to successfully appointment someone to the Court of Appeals for the DC Circuit.  It was John Roberts, who joined the bench in 2003.

              And in his 8 years of office, he only appointed 4 judges to the DC Circuit, 1 of which only replaced John Roberts* after he was confirmed to the SCOTUS.  (who btw got 78 votes for SCOTUS confirmation)

              Janice Rogers Brown and Thomas Griffith were confirmed in 2005 as part of the Gang of 14 deal and Brett Kavanaugh was confirmed later that year as part of a subsequent deal to not filibuster.  ..for the life of me I have no idea why we let this guy on the bench.  He's one of the worst.

              (* -- technically Robert's actual seat is still "vacant" but it still adds up to a net total of 3 appointed judges to the DC Circuit.  Robert's seat will remain vacant as Obama's current nominee is Sri Srinivasan and he is being nominated to Raymond Randolph's seat.  Judge Randolph left the bench in 2008)

              I think Srinivasan actually has a good chance to get confirmed.  He is universally supported, a brilliant lawyer and the GOP can use it as cover that they haven't blocked everyone Obama has tried to nominate.  I guess we'll find out soon...

              Красота спасет мир --F. Dostoevsky

              by Wisper on Thu Apr 04, 2013 at 08:21:20 AM PDT

              [ Parent ]

              •  For anyone else that follows this (1+ / 0-)
                Recommended by:

                Srinivasan's first hearing in front of the Senate Judiciary Committee is scheduled for 2:30 PM April 10th (next Wednesday).  (He's been formally nominated since June 2012)

                We should be able to get a clear read on whether or not the GOP plans to block the current top Deputy US Solicitor General from becoming the first South Asian Circuit Court judge in US history.

                Красота спасет мир --F. Dostoevsky

                by Wisper on Thu Apr 04, 2013 at 08:26:13 AM PDT

                [ Parent ]

    •  one word: bork nt (1+ / 0-)
      Recommended by:

      EdriesShop Is it kind? is it true? is it necessary?

      by edrie on Thu Apr 04, 2013 at 07:39:08 AM PDT

      [ Parent ]

      •  love the fact that is now a verb (1+ / 0-)
        Recommended by:

        Its used in lobbyist circles to reference to use an all-out scorched earth non-negotiable maneuver to politically block something completely antithetical to your side.

        "If Bush tries to put Alberto Gonzales up for the Supreme Court, the Democrats would bork him in a second."

        "Forget the veto, if a real social security privatization plan ever made it to the Senate it would get borked so hard it would make your head spin."

        Красота спасет мир --F. Dostoevsky

        by Wisper on Thu Apr 04, 2013 at 07:45:31 AM PDT

        [ Parent ]

  •  Ack! It's the Court of Appeals for the DC Circuit (1+ / 0-)
    Recommended by:

    or the "DC Circuit."  It's NOT the DC Court of Appeals.  That's a totally different court!

    •  And it's definitely NOT a "little known" court... (1+ / 0-)
      Recommended by:

      in terms of administrative law (which is what a case against the SEC or NLRB is likely going to be), it's unequivocally the most influential court in the country.

    •  I went through and changed most of the... (0+ / 0-)

      references in the diary before I published it.

      It's NOT the DC Court of Appeals.
      However, there's a limited number of pixels in a diary title and I ran out. So I ran with it. lol

      (you legal beagles are so picky!)


      "That men do not learn very much from the lessons of history is the most important of all the lessons of history." ~ Aldous Huxley

      by markthshark on Thu Apr 04, 2013 at 08:02:47 AM PDT

      [ Parent ]

  •  Reid is a fine senator from Nevada (1+ / 0-)
    Recommended by:

    he's perhaps not the best choice for an activist majority leader.

  •  Among other things this court (2+ / 0-)
    Recommended by:
    Simplify, markthshark

    has consistently blocked habeus corpus appeals from detainees at Guantanamo. A few of these made it to the Supreme Court, which unfortunately upheld the D.C. court.

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