Blocking the Courthouse Door
This week’s obscene confrontation over the new Supreme Court vacancy provides a perfect case study. Justice Antonin Scalia’s body was still warm when Senate Majority Leader Mitch McConnell proclaimed, “The American people should have a voice in the selection of their next Supreme Court Justice. Therefore, this vacancy should not be filled until we have a new president.” Despite the facts that the American people spoke clearly in making Barack Obama president of the United States for eight years and that there is no precedent for shutting down the judicial confirmation process, headline writers immediately began penning pieces that implied “both sides do it.” While President Obama is merely exercising his constitutional power by nominating Scalia’s successor, Politico warned that “Obama chooses to fight over Court.” The New York Times and the Washington Post also got in on the act, respectively fretting that “President raises stakes in Supreme Court nominee battle” and “Obama rejects GOP calls to let next president choose Scalia’s successor.”
The real story is that while Barack Obama is only doing what presidents have always done, Mitch McConnell and his Republicans are promising to do what was once unimaginable. The Republican leader isn’t just refusing to hold hearings for any Supreme Court nominee, but to prevent President Obama from filling the vacancies on the nation’s 13 circuit courts of appeal as well. McConnell explained his scheme to right-wing radio host Hugh Hewitt in June:
“So far, the only judges we’ve confirmed have been federal district judges that have been signed off on by Republican senators,” McConnell said on “The Hugh Hewitt Show.”
“And do you expect that that will continue to be the case for the balance of this session?” Hewitt asked.
“I think that’s highly likely, yeah,” McConnell responded.
So far, McConnell has largely kept his promise. While President George W. Bush had 23 federal district court and four appeals court judges confirmed by the Democratic majority in 2008, the Republican-controlled Senate has limited Obama to just one circuit court nomination confirmed in 2015 and 2016, and a total of four district courts judges approved since New Year's. And as the Daily Beast recently documented, Republicans began applying the brakes last year:
According to a detailed study by the Brookings Institute, the Senate has already slowed the pace of judicial confirmations to record levels. In the case of Reagan, Clinton, and Bush, confirmations didn't slow until the second half of the presidents' eighth year in office. In their seventh years, the Senate confirmed 23, 17, and 29 judges, respectively. In Obama's seventh year? 10.
In other words, the two-term Republican presidents fared almost twice as well as the two-term Democrat presidents, with Obama faring the worst by far.
As the record shows, the GOP strategy of blocking the courthouse doors to new Democratic judges began the moment Barack Obama first walked into the Oval Office. (Republican calls for "up or down" votes and an end to the judicial filibuster went silent before Obama was even sworn in.) Citing research by the Alliance for Justice, in June 2011 ThinkProgress reported:
[T]he Senate confirmed fewer of [Obama's] district and circuit nominees than every president back to Jimmy Carter, and the lowest percentage of nominees - 58% - than any president in American history at this point in a President's first term. By comparison, Presidents George W. Bush, Clinton, George H.W. Bush, Reagan and Carter had 77%, 90%, 96%, 98%, and 97% of their nominees confirmed after two years, respectively.
Senate Republicans' mass obstruction of Obama's judges stands in stark contrast to the treatment afforded to past presidents. Indeed, the Senate confirmed fewer judges during Obama's first two years in office than it did during the same period in the Carter Administration, even though the judiciary was 40 percent smaller while Carter was in office.
As dismal as that record was, it was actually an improvement from a year earlier, when only 43 percent of President Obama's judicial appointments had been confirmed during his first year-plus in office:
Judicial confirmations slowed to a trickle on the day President Barack Obama took office. Filibusters, anonymous holds, and other obstructionary tactics have become the rule. Uncontroversial nominees wait months for a floor vote, and even district court nominees--low-ranking judges whose confirmations have never been controversial in the past--are routinely filibustered into oblivion. Nominations grind to a halt in many cases even after the Senate Judiciary Committee has unanimously endorsed a nominee.
Such tactics are completely unprecedented, and so are their results. Fewer than 43 percent of President Obama's judicial nominees have so far been confirmed, while past presidents have enjoyed confirmation rates as high as 93 percent. And President Obama's nominees have been confirmed at a much slower rate than those of his predecessor--nearly 87 percent of President George W. Bush's judicial nominees were confirmed.
It's no wonder Chief Justice John Roberts—certainly no friend of Barack Obama and the Democratic Party—urged action in January 2011 to address "the persistent problem of judicial vacancies." Eventually, then-Senate Majority Leader Harry Reid went "nuclear," banning the filibuster on non-Supreme Court nominations. But by 2014, the confirmation rate for Obama's selections still trailed George W. Bush's by 88 to 79 percent. And Obama's choices for both the federal bench and executive agencies had to wait far longer to be confirmed:
Emptying the Obama Administration
The Republicans’ scorched-earth campaign to preserve a conservative federal judiciary also extends to the executive branch itself. As Politico reported in January, the GOP long ago concluded the Obama administration couldn’t do much if there was no one in it.
More than a quarter of the administration’s most senior jobs, more than 100 overall, are missing permanent occupants…
New data compiled by the Congressional Research Service and obtained by POLITICO found that the Senate in 2015 confirmed the lowest number of civilian nominations — including judges and diplomatic ambassadors — for the first session of a Congress in nearly 30 years.
Obama’s ability to staff his administration has been a challenge from the start, even with Democrats holding the Senate for the first six years of his administration. According to an exhaustive study published last year by University of California at Berkeley law professor Anne Joseph O’Connell, Obama’s nominees from 2009 through 2014 faced confirmation lengths that were nearly twice as long as Ronald Reagan’s — an average of 59.4 days for the Republican versus 127.2 days for the current president. The Obama administration’s confirmation delays also easily outpace its three immediate predecessors: President George H.W. Bush needed an average of 67.3 days to get his team in place, while President Bill Clinton required 91.8 days and President George W. Bush had to wait 97.4 days.
Senate Republicans haven’t wavered in their intransigence, even when that means putting U.S. national security at risk. The confirmation of Adam Szubin, the Treasury Department’s point-man on terrorist financing (including ISIS), has been in languishing since April. Attorney General Loretta Lynch was forced to wait a record 166 days for confirmation, more than triple the wait time for President Bush’s last AG, Michael Mukasey.
But Republicans added a novel act of subterfuge to this list of outrages: Refusing to confirm any nominee at all. That was the case with the Consumer Financial Protection Bureau (CFPB), an agency created by Congress in the 2010 Dodd-Frank Wall Street reforms so loathed by the GOP. When rumors began circulating in 2011 that Elizabeth Warren would be President Obama’s choice to head the bureau she helped create, Mitch McConnell’s office announced his opposition wasn’t personal:
"It's not sexist. It's not Elizabeth Warren-specific," McConnell spokesman Donald Stewart said. "It's any nominee."
Two years later, McConnell and 42 of his Senate colleagues wrote President Obama a letter threatening to block the reappointment of Richard Cordray—or anyone else—unless the ransom demands at CFPB were met. Ultimately, their blackmail was not paid and Cordray was confirmed in June 2013 by a 66-34 vote. Their extortion—changing its funding from the Federal Reserve to a congressional appropriation and replacing its director with a five-person commission—would have made the bureau operate much more like the National Labor Relations Board.
As it turned out, the NLRB became one of the Republicans’ great victories during the Obama presidency. After blocking Obama’s three nominees to the independent agency, Republicans backed a lawsuit to strike down appointments the president then made during a three-day Senate break. Ultimately, the Supreme Court agreed, finding that under the Recess Appointments Clause, “the Senate is in session when it says it is, provided that, under its own rules, it retains the capacity to transact Senate business.”
Setting the Filibuster Record
As it has turned out, during the Obama years Republicans have made sure the Senate rarely has the capacity to do any business at all.
By 2013, the GOP had filibustered 27 of Obama's executive branch nominees, compared to just seven during Dubya's eight years in office. As Texas Sen. John Cornyn, who once demanded an “up-or-down vote” on President Bush’s nominees, proclaimed three years ago during the confirmation process for Republican Chuck Hagel as Obama’s new Secretary of Defense:
“There is a 60-vote threshold for every nomination.”
If that seems at odds with the traditional understanding that a simple majority wins in the Senate, that’s because Mitch McConnell’s Republicans simply did away with tradition for nominations and just about everything else.
When they weren't filibustering people, the GOP was blocking legislation at more than twice the rate of any previous Congress. (The GOP Senate minority actually started that practice during the last two years of President Bush's tenure. As Republican Sen. Trent Lott put it in 2007, "The strategy of being obstructionist can work or fail. So far it's working for us.")
As even Robert Samuelson (yet again, no friend of Democrats) acknowledged, "From 2003 to 2006, when Republicans controlled the Senate, they filed cloture 130 times to break Democratic filibusters. Since 2007, when Democrats took charge, they've filed 257 cloture motions." The Republicans didn't merely eviscerate the old mark for cloture motions and filibusters after their descent into the minority in 2007. As Paul Krugman detailed in late 2009, the GOP's obstructionism has fundamentally altered how the Senate does—or more accurately, doesn't do—business:
The political scientist Barbara Sinclair has done the math. In the 1960s, she finds, "extended-debate-related problems" -- threatened or actual filibusters -- affected only 8 percent of major legislation. By the 1980s, that had risen to 27 percent. But after Democrats retook control of Congress in 2006 and Republicans found themselves in the minority, it soared to 70 percent.
Now, as the Washington Post concluded four years ago, total obstructionism is the new normal for Republicans.
Holding the Debt Ceiling—and the American Economy—Hostage
By this point, it should be crystal clear that Republican obstructionism of President Obama has been unprecedented and wide-ranging. The GOP blocked judicial nominees at record rates, shattered the previous mark for filibusters, and shut down the government. But one strategy has been the most dangerous, if not outright traitorous: Republicans in Congress have repeatedly threatened the good faith and credit of the United States by defaulting on the national debt.
That’s right. No party ever had both the votes and the intent to block a debt ceiling increase. Yet then-Speaker John Boehner and the House Republicans were prepared to do just that despite Boehner’s own January 2011 warning that failure to boost Uncle Sam’s borrowing authority “would be a financial disaster, not only for our country but for the worldwide economy.” Yes, even after future Speaker Paul Ryan declared that “you can’t not raise the debt ceiling,” Republicans convinced majorities of Americans that we need not—and should not—raise the debt ceiling.
How did the GOP turn the unthinkable into politics as usual? For starters, as PBS Frontline explained:
“[Then House Majority Leader Eric] "Cantor proposes to do something which had not been done before: use the debt ceiling vote for maximum leverage and threaten to throw the country into default."
But for Cantor’s gambit to work, he and the new Republican House majority needed to sell a flat-out lie in the spring and summer of 2011. Demanding steep spending cuts even as the effects of the Great Recession lingered, Texas Rep. Jeb Hensarling claimed that for Republicans, raising the debt ceiling is "contrary to our DNA." Majority Leader Cantor pleaded for understanding from the media:
"I don't think the White House understands is how difficult it is for fiscal conservatives to say they're going to vote for a debt ceiling increase."
By the time McConnell, Boehner, Cantor, and company were planning their next debt ceiling extortion in 2013, that mythology became conventional wisdom among the Beltway press. With their first sentence in an article that May, Jake Sherman and Steven Sloan of Politico provided air cover for the GOP's inconceivable—and dangerously irresponsible—hostage-taking.
"It's never been easy for House Republicans to raise the debt limit."
That, of course, was complete nonsense. Between 1980 and 2010, the debt ceiling was routinely raised 40 times, including 17 times under Ronald Reagan (who tripled the national debt) and another seven under President George W. Bush (who nearly doubled it again). As it turns out, the GOP leadership team including Eric Cantor voted a combined 19 times to bump the debt limit $4 trillion during Bush's tenure. (That vote tally included a "clean" debt ceiling increase in 2004, backed by 98 House Republicans and 31 sitting GOP Senators who perpetrated the 2011 blackmail.)
Of course, they had to. After all, the two unfunded wars in Afghanistan and Iraq, the budget-busting Bush tax cuts of 2001 and 2003 (the first war-time tax cut in modern U.S. history), and the Medicare prescription drug program drained the U.S. Treasury and doubled the national debt by 2009. As the Center on Budget and Policy Priorities concluded, the Bush tax cuts accounted for half of the deficits during his tenure, and if made fully permanent, over the next decade would have cost the U.S. Treasury more than Iraq, Afghanistan, the recession, TARP, and the stimulus—combined. And Mitch McConnell, John Boehner and Eric Cantor voted for all of it.
When President Obama ultimately signed the Budget Control Act of 2011, better known as “the sequester,” Speaker Boehner bragged, “I got 98 percent of what I wanted.” But that’s not all he got. Even in avoiding the global calamity of default by agreeing to allow the Treasury to borrow more money to pay obligations Uncle Sam had already run up, Boehner and his Republican allies nevertheless did very real damage to the U.S. economy.
During the tense summer of 2011, U.S. job creation faltered, consumer confidence plummeted, and borrowing costs jumped as Republicans threatened to bring the global economy to its knees.
For its part, Standard and Poor's left no doubt of who was to blame for its downgrade of U.S. credit:
S&P senior director Joydeep Mukherji said the stability and effectiveness of American political institutions were undermined by the fact that "people in the political arena were even talking about a potential default," Mukherji said. "That a country even has such voices, albeit a minority, is something notable," he added. "This kind of rhetoric is not common amongst AAA sovereigns."
That kind of rhetoric may not be common amongst AAA sovereigns, but it's all in day's work for today’s Republican Party.
Sadly, none of this should really have come as a surprise to anybody. In April 2009—that is, less than three months into Barack Obama’s presidency—I echoed Daniel Patrick Moynihan in warning that the furious Tea Party “movement” in the GOP was “defining political deviancy down.” By December 2015, “the double devolution of the GOP and the U.S. media” seemed complete in the rise of Donald Trump:
The hate machine that Donald Trump embodies isn’t an aberration, but the natural culmination of the intertwined, downward spirals of the conservative movement and its U.S. media enablers. After all, the GOP long ago entered an era of “post-fact” politics in which morality tales and stories of good and evil replaced facts and science as the basis for winning elections and setting public policy. And as it turns out, the Republicans’ largely successful descent into degeneracy was only made possible by the concurrent decline of American journalism. Having abandoned the search for objective truth as its mission, most of the U.S. media are now solely in the entertainment business. In this new environment, all issues are framed as having two—and only two—sides, with the loudest voice in the “debate” being declared the winner.
As the GOP threatened to shut down the government over Obamacare repeal in the fall of 2013, new Meet the Press host Chuck Todd inadvertently made the same point. When former Pennsylvania Gov. Ed Rendell lamented that the American people had been misinformed about the Affordable Care Act with bogus claims about “death panels” and a “government takeover of health care,” Todd protested that the search for truth wasn’t part of his job description:
"But more importantly, it's stuff that Republicans successfully messaged against it and they wouldn't have heard...they don't repeat other stuff because they haven't even heard the Democratic message. What I always love is people say 'it's your fault in the media.' No, it's the President of the United States' fault for not selling it."
As the GOP's "Defund Obamacare" campaign ramped up over the summer of 2013, Todd used his NBC "First Read" column to actively illuminate rather than passively mislead. As he put it on July 9:
Here's a thought exercise on this summer morning: Imagine that after the controversial Medicare prescription-drug legislation was passed into law in 2003, Democrats did everything they could to thwart one of George W. Bush's top domestic achievements. They launched Senate filibusters to block essential HHS appointees from administering the law; they warned the sports and entertainment industries from participating in any public service announcements to help seniors understand how the law works; and, after taking control of the House of Representatives in 2007, they used the power of the purse to prohibit any more federal funds from being used to implement the law. As it turns out, none of that happened.
That's exactly right. Despite their opposition to the Part D legislation, Democrats didn't just refuse to obstruct Bush's completely unfunded $400 billion windfall for pharmaceutical firms. In Washington and in the states, Democrats helped ensure the successful implementation of a Republican program whose badly bungled 2006 launch even John Boehner acknowledged was "horrendous."
Why did Democrats choose cooperation where Republicans chose sabotage? Because it’s not true that “both sides do it.” Because we’re living in age of “asymmetric polarization” in which one political party has now normalized the previously inconceivable. As Thomas Mann and Norman Ornstein put it in summing up their 2013 book, It's Even Worse Than It Looks:
"Let's just say it: The Republicans are the problem."
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