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U.S. Senator Charles Schumer (D-NY) (L-R), Senate Majority Leader Harry Reid (D-NV), Senator Patty Murray (D-WA) and Senator Dick Durbin (D-IL) hold a news conference after bipartisan passage of stopgap budget and debt legislation at the U.S. Capitol in W
There's no time like the present, Harry.
The U.S. Supreme Court, as Alicia Bannon and David Earley write at SCOTUSblog, displayed a stunning disregard for the current state of Senate dysfunction and politicization in concluding that that the appointment of three NLRB members by President Obama under the guise of his recess appointment power was unconstitutional. That lack of acknowledgement of political reality, they argue, means that Republicans will be encouraged to obstruct further, and that Democrats have to use their majority power now to stop them.
[T]he Court displayed little understanding of the recent politicization of the confirmation process or the structural role that the recess appointment power plays as a stop-gap to ensure a functioning democracy, making the rather remarkable statement that “[m]ost appointments are not controversial and do not produce friction between the branches.”  Even more troubling was the Court’s elevation of form over substance in ruling that the Senate’s pro forma sessions—in which the Senate calls itself to business for a few seconds and conducts no business—were sufficient to deny the president the authority to make recess appointments.

Yesterday’s decision opens the door to new kinds of Senate obstruction and risks eviscerating the president’s practical ability to make recess appointments.  The decision creates even more urgency around the need for the Senate to reform its practices, end obstruction of nominees, and ensure that our agencies and courts are adequately staffed. […]

The Senate already took an important step toward reform last fall by changing the filibuster procedure for most nominees to require only a majority vote for cloture. Yet further reforms are urgently required to ensure that executive and judicial nominees are considered in a timely fashion—including reducing opportunities to waste floor time and reforming the blue slip process, where home-state senators can keep judicial nominees from moving forward. Without such reform, yesterday’s decision has the potential to significantly hamstring the president’s power to execute our laws.

There couldn't be a better legal case made for Harry Reid and Senate Democrats to act. The authors point out that Senate Republicans have effectively stopped President Obama from fulfilling one of his key roles, his constitutional duty to "'take Care that the Laws be faithfully executed'through the appointment power, keeping our agencies running and our courts staffed." Senate Republicans have been hell-bent on making sure that none of the branches of government functions, but Senate Democrats do have the power to combat them.

That means changing floor procedure to stop Republicans from wasting so much time that the backlog of nominees can't be brought to the floor. It also means changing the blue slip procedure that allows Republicans to prevent any judicial nominee from their states to even be named. Now's the time to do it.

Join Fix the Senate Now Coalition and Daily Kos by signing the petition to Harry Reid: We agree. If Senate Republicans are not on the floor to actively oppose a nomination, they should lose their time to debate.

Originally posted to Joan McCarter on Fri Jun 27, 2014 at 01:06 PM PDT.

Also republished by Daily Kos.

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Comment Preferences

  •  Tip Jar (25+ / 0-)

    "The NSA’s capability at any time could be turned around on the American people, and no American would have any privacy left, such is the capability to monitor everything. [...] There would be no place to hide."--Frank Church

    by Joan McCarter on Fri Jun 27, 2014 at 01:06:42 PM PDT

  •  Remember the Conservative Majority at Least (2+ / 0-)
    Recommended by:
    elwior, alypsee1

    feels there is no role for government. Dysfunction is their philosophy and intention.

    We are called to speak for the weak, for the voiceless, for victims of our nation and for those it calls enemy.... --ML King "Beyond Vietnam"

    by Gooserock on Fri Jun 27, 2014 at 01:11:00 PM PDT

    •  Until They Take Power (1+ / 0-)
      Recommended by:

      Then government action is good. Actually the right wing thinks that they are the only "legitimate" point of view so if they don't win elections it must be due to fraud somehow. Government dysfunction is just a tactic that will disappear the instant they gain majority control over Congress. Then they'll move at warp speed.

  •   i favor giving both sides 10 filibusters per (1+ / 0-)
    Recommended by:

    session of Congress. no holds either. once a side filibusters 10 bills- whether filibuster is upheld or no, then its simple majority vote the rest of the way. the filibuster was designed to be rarely used, not abused. the filibuster can apply to  legislative bills, judicial appointments and other things that come up. Filibuster a Sc justice? you just used up one of your 10 for the next 2 years.

    •  Yep I've Suggested Similar. (0+ / 0-)

      Though there may need to be a divide between nominations and bills.

      10 in 2 years is above some very long term averages if I recall correctly.

      We are called to speak for the weak, for the voiceless, for victims of our nation and for those it calls enemy.... --ML King "Beyond Vietnam"

      by Gooserock on Fri Jun 27, 2014 at 02:13:14 PM PDT

      [ Parent ]

    •  This only works if (0+ / 0-)

      whenever a filibuster succeeds in stopping a bill or nomination, it can't be brought up in the same calendar year--or some such similar provision.

    •  i like Sen Franken's suggestion (0+ / 0-)

      Faux News ruined my state

      by sc kitty on Sat Jun 28, 2014 at 06:34:39 PM PDT

      [ Parent ]

    •  It's too stupid late to make use of this reform (0+ / 0-)

      What good will it do with a few months left in this session? Two years of fighting the abuse might have done something. But now the Senate may be turned over to the GOP after November.

      If we hold the Senate it should be done in the first few days in order to give it two years of weight.

      •   blame Reid and the other oldtimers (1+ / 0-)
        Recommended by:

        who remember when the Rs were not crazy lunatics. comity may have worked then, Senator, but not now. theses rs hate you and everything you stand for. there is no compromising with them. strictly limit the filibuster and get stuff done. if you want to filibuster you have to do it in the Strom Thurmond style, hold the floor for several hours, none of this ' i intend to filibuster' crap. i dont think the rs will take the senate, they'd need to run the table basically, and grimes is beating Mitch in Kentucky. she wins, we hold the Senate and likely only lose a seat or two. we'll get several seats back in 2016, notably johnsons here in WI.

        •  Reid did make a concession (0+ / 0-)

          But they'll drag feet now due the uncertainty of a continuing majority. Which may be moot because the GOP might make a pre-emotive rules change if they win. But that is unlikely and stupid because at this time we likely take back the Senate in 2016 and we could feed abuse of the system ourselves for two years.

          Although I'd rather limit that now and suffer with less flexibility for those two years. We won't see a Thurmond style filibuster back any time soon. But there are a lot of changes, especially placing the responsibility of keeping large numbers present in chambers for a quorum on those who CHOOSE to filibuster, not those defending against it. Which could go a long way towards hobbling It.

          Also when in the majority it's the Dems responsibility to talk about the abuse every frickin' time it happens! Senate Dems fail miserably on that. Most Americans have no idea this is going on. We need to pressure them to make it a daily issue the news media can't avoid.

  •  Be careful what you wish for... (2+ / 0-)
    Recommended by:
    alypsee1, lina

    The only way John Bolton became UN Ambassador was through a Bush recess appointment.  There should be some legitimate way for the minority to block nominees who are clearly not competent for the job for which they're nominated.  A man who wants to disassemble the UN shouldn't be the ambassador.

    What galls me though, are the nominees who would get 80+ votes for confirmation, but the confirmation vote is held-up for unrelated issues.  THOSE are the filibusters that should be eliminated...if there were a way to codify that.

    Life is what happens to you while you're busy making other plans. -- John Lennon

    by gdalpert on Fri Jun 27, 2014 at 01:39:51 PM PDT

    •  The Court should not be swayed by the moment (2+ / 0-)
      Recommended by:
      Jon Says, VClib

      but should try to rule for at least the next few years so the fact that right now during Obama's term things are logjammed is not good reason to  not try a more even handed approach when deciding cases.

  •  It's gonna be even worse... (1+ / 0-)
    Recommended by:
    historys mysteries

    ...when it's a president from one party and a majority Senate from the other.

    Under those circumstances, basically there will be no more recess appointments.

    In the short term though, if Reid wants to keep the Executive branch from hemorrhaging for the next 2 1/2 years, not only will there need to be even more filibuster reform, he's going to have to think seriously about decoupling Senate recesses from House ones.

    "Don't ride in anything with a Capissen 38 engine. They fall right out of the sky." -- Kaywinnit Lee Frye

    by Technowitch on Sat Jun 28, 2014 at 04:15:15 PM PDT

    •  The coupling is in the Constitution (0+ / 0-)

      I don' t think Reid has much latitude with respect to requiring approval of the House to go into recess -- that's codified in the Constitution (Article I, Section 5):

      Neither House, during the Session of Congress, shall, without the Consent of the other, adjourn for more than three days, nor to any other Place than that in which the two Houses shall be sitting.
      Changing this would require a Constitutional amendment.

      If either could adjourn without the consent of the other, that creates a bunch of other problems. For example, the House leadership right now could just decide to adjourn and that would stop every bit of new legislation until they returned - no votes needed, no debate needed, no forum for Democrats to attempt to make amendments to bills in the House. This would be reminiscent of the 2003 walkout of Texas Democrats or other situations from history.

      •  You quoted it right there-- (0+ / 0-)

        They can adjourn for 3 days at a time.

        That'd be enough to push through some recess appointments.

        As for whether adjournment makes any difference -- you really think the House GOP gives a flying rat's ass about passing any legislation. They can, literally, be in session with their thumps planted firmly in their asses and do nothing.

        Which is pretty much what they've been doing since January 2009.

        "Don't ride in anything with a Capissen 38 engine. They fall right out of the sky." -- Kaywinnit Lee Frye

        by Technowitch on Sat Jun 28, 2014 at 11:01:04 PM PDT

        [ Parent ]

        •  It was Obama's fault in this case (0+ / 0-)

          He should know better.

          The reason the Senate was in session is because the House wouldn't adjourn.  But the framers thought of this.
          when the 2 houses can't agree, the President can order an adjournment under the Constitution.
          Presto!. He makes the appointments during that time.

          Granted, to pull this trick, it needs a divided Congress.

          When Reid was holding pro-forma sessions, the House would have had to vote to adjourn, and then when Reid doesn't hold a vote, then the President can sign the order.

  •  The Court doesn't (or shouldn't)... (1+ / 0-)
    Recommended by:

    ...operate on political reality, it operates on the state of the law.

    As the (unanimously affirmed) law now stands, Congress can confirm, vote down, or fail to consider the President's nominees as they damn well please. The "unprecedented" nature of the obstruction is a political problem, not a legal one.

    Harry Reid started this practice of keeping the Senate in session to stop Bush appointees after all.

    If Reid wants to change Senate procedure he should. That is the correct venue to address this "problem". Just keep in mind that there is a high probability that the next administration will be Republicans, and the Dems will be able to do damn well nothing to stop those appointees.

    (-5.50,-6.67): Left Libertarian
    Leadership doesn't mean taking a straw poll and then just throwing up your hands. -Jyrinx

    by Sparhawk on Sat Jun 28, 2014 at 05:04:57 PM PDT

    •  Stop trying to patronize (1+ / 0-)
      Recommended by:

      You're a sniveling little weasel. Let's see Democrats go scorched earth like the Republicans have for the past 34 years and let the chips fall where they may.

      •  Let's see indeed (1+ / 0-)
        Recommended by:

        I care much more about the process than about who wins. Before this ruling, the President was arrogating to himself more power than he was entitled to under the Constitution. Stopping that is far more important than any dispute over these particular nominees.

        If Congress gets gridlocked it gets gridlocked. It's not necessarily a problem that needs a solution. The President of one party is having his nominees obstructed by Congresspeople of the opposing party. What else is new.

        (-5.50,-6.67): Left Libertarian
        Leadership doesn't mean taking a straw poll and then just throwing up your hands. -Jyrinx

        by Sparhawk on Sat Jun 28, 2014 at 05:30:48 PM PDT

        [ Parent ]

        •  What else is new? (1+ / 0-)
          Recommended by:

          Filibusters. All time high.

          Your care for the process is touching but completely misguided.
          Obstructionism at all costs is not a principle on which any government can function and gridlock is no longer a viable option.

          •  Says you (1+ / 0-)
            Recommended by:

            Because your particular pet political issues aren't being addressed.

            You (presumably) weren't complaining in the Bush era when the pet political issues of right-wingers weren't being addressed by similar "obstructionism". Republicans used precisely that word to complain about Democrats in that era, including the same whining about blue slips, how Democrats were being "unprecedentedly" obstructionist, etc.

            Obstructionism works just fine for many people a lot of the time, including (presumably) you during the Bush era. It's a perfectly valid political strategy, as valid as getting your own legislation passed.

            (-5.50,-6.67): Left Libertarian
            Leadership doesn't mean taking a straw poll and then just throwing up your hands. -Jyrinx

            by Sparhawk on Sat Jun 28, 2014 at 05:52:23 PM PDT

            [ Parent ]

            •  When weren't (1+ / 0-)
              Recommended by:

              the pet political issues of right wingers being SATISFIED in the BuchCo era? That's how the entire country was driven completely off the rails which is exactly why capitulation is no longer a valid proposition.

              Obstructionism at the federal level is a losing proposition for the vast majority and political strategy is not a valid excuse for continued misbehavior.

  •  Time for Democrats to go scorched earth (1+ / 0-)
    Recommended by:

    Will it ever happen?


  •  SCOTUS (0+ / 0-)

    At least the slim majority, knows full-well what they're doing. The Koch's bidding; elections have consequences. And that, my friends, is why I'm all in with Hillary.

    "the northern lights have seen queer sights, but the queerest they ever did see. Was that night on the marge of Lake Lebarge, I cremated Sam McGee". - Robert Service, Bard of the Yukon

    by Joe Jackson on Sat Jun 28, 2014 at 05:45:57 PM PDT

  •  A perplexing argument... (0+ / 0-)
    [T]he Court displayed little understanding of the recent politicization of the confirmation process or the structural role that the recess appointment power plays as a stop-gap to ensure a functioning democracy, making the rather remarkable statement that “[m]ost appointments are not controversial and do not produce friction between the branches.”
    The court was right to  ignore the current political landscape - it doesn't mean they don't "understand" it. The Constitution is the source of the recess appointment power and it certainly is not the court's job to "fix" the Constitution but, rather, to follow it and, as needed, compel others to do likewise. If the Constitution needs "fixing", there's a well defined process for doing so and it's been done many times (and attempted and failed a number of times due to the democratic process).

    There's little evidence that the founding fathers included the recess appointment clause as a "stop gap" in case the President chose not to nominate a candidate that the Senate would confirm. The purpose of the clause was to deal with a problem that is now mostly academic given that we have a full time legislature, nearly instantaneous communication, and the ability to fly from almost any state to Washington DC in less than eight hours.

    The court was obviously aware that the Senate makes the rules they operate under (it was even noted in their opinion). As the diary notes, modifying the filibuster rules can eliminate the perceived problem and that is completely in the control of the Senate. Even if the court felt it was appropriate to "fix" the problem, why should they do so when a democratic rather than a judicial means is available?

    It's also relevant to note that there's nothing to stop the Senate from remaining in session by any reasonable definition. The Senators can stay in town and conduct business. Perhaps they would accomplish nothing during this time, but surely no reasonable person thinks that the courts should step in and declare that portions of the Constitution should be ignored because one of the equal bodies is deciding not to pass legislation or confirm nominees they disagree with. (Even if there is an irrational person who believes the court should do this, they are likely to change their tune very quickly if Kennedy, or one of the more liberal justices, were to leave the court and be replaced by someone that person believes to be the devil's spawn).

  •  So how about the President do this: (1+ / 0-)
    Recommended by:

    Going forward, the Senate has 90 days to hold whatever hearings it feels necessary to vet any and all Presidential appointees.  The 90 days begins as soon as the President announces the nominee.

    If, by the end of the 90 days, the nominee has not been refused by a majority vote in the Senate, it will be taken that the nominee has been approved by the Senate and they can go to work.  This includes nominees who have not been called in to testify and whose nomination aren't brought to the Senate floor for a vote.

    In other words, either the Senate actually does its damned job and votes down the nominee, or the President's nominees are presumed to be approved.  If the Senators want to bellyache about how little time that is for them to do this most important work, they should be reminded that the Senate is in control of its own schedule, so maybe they should spend more than two days out of the week in Washington and actual do their jobs!

  •  After Six Years? (0+ / 0-)

    Pardon my cynicism - but my knee just jerked
    What difference does it make Now? 27 work days left for This year...113 days total work days in 2014, this year-definitely less than 2013-maybe Less next and less the next. We'll just keep paying them full pay for doing nothing.
    After the first 72 days (before brown)when there was actually was a "filibuster proof" majority" (as long as there were no "traitorous'" Dems) ---the "hand writing" was on the wall Then. I know so, so many people tried to get the Senate to listen-hell even a couple senators like Merkley pushed for change.
    But Reid, Schumer, Levin and so many others said "no", using the excuse: Traditionalism.
    Please forgive my negativity--but "Fk 'em Dano"-they're likely too late.
    The question for me is "Why?"

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