On May 19th, Senate Republicans successfully filibustered the nomination of Goodwin Liu for the Court of Appeals of the Ninth Circuit. Under the deal reached by the “Gang of 14” in 2005, senators agreed not to filibuster judicial nominees except under “extraordinary circumstances.” Republicans used that exemption to block Liu’s nomination, even though the Berkeley law professor is widely regarded as one of the sharpest constitutional scholars in the country, earned praise from conservatives like Ken Starr and John Yoo, and was named “unanimously well-qualified,” by the American Bar Association.

The very Republican senators who filibustered Liu’s nomination once decried the tactic. “I would never filibuster any President’s judicial nominee, period,” said Senator Lamar Alexander (R-TN) in 2005. But under the Obama Administration, Alexander and his ilk have had a change of heart. Their level of obstructionism keeps reaching new heights.

According to a report [pdf] from the Alliance for Justice:

Of the 105 nominations submitted by President Obama during the first two years of his term, only 62—2 Supreme Court justices, plus 16 courts of appeals and 44 district court judges—were confirmed. That is the smallest percentage of judicial confirmations over the first two years of any presidency in American history.

Judicial vacancies increased from 55 to 97 during President Obama’s first two years, whereas under both President’s Bush and Clinton, vacancies declined.

Senate Republicans used every parliamentary tool they could to obstruct and delay President Obama’s nominees, including placing secret holds on each judicial nominee who reached the Senate floor, even those that had the support of Republican home-state senators. They also denied votes on 13 nominees at the end of the 111th Congress who received no Republican opposition in committee. 

Today 53 Obama judicial nominees still have yet to be confirmed by the Senate. Of the 1132 executive and judicial branch nominations submitted to the Senate by President Obama, 223 nominees have yet to receive a vote on the Senate floor, according to White House data. That means that nearly 20 percent of Obama nominees have been blocked by Senate Republicans.

In response to this obstruction, Obama has filled 28 vacant positions via recess appointments. President Bush, in contrast, made 171 recess appointments during his presidency, including John Bolton for UN ambassador and two controversial judicial nominations, Charles Pickering and William Pryor, to the US Court of Appeals. To catch up with Bush, Obama would have to make roughly twenty-eight recess appointment per year until the end of his presidency, assuming he wins a second term and governs for eight years.

To fill these vacancies, the Obama administration must move aggressively to challenge GOP obstructionism, which is something they’ve been slow to do. According to a new Alliance for Justice report [pdf] on judicial nominations in the 112th Congress:

President Obama still badly trails his two predecessors in terms of nominations. At the end of the 111th Congress, the President was 27 nominations behind President Bush and 37 nominations behind President Clinton at a similar point in their presidencies, and there were enough vacancies open for him to keep pace with either of them. Instead of catching up, President Obama has slipped further behind President Bush (now 51 nominations behind), and has barely made a dent in the gap with President Clinton (now 34 nominations behind), at the comparable point in their presidencies.

Yet Republicans, in another stunning act of hypocrisy, are determined not to let Obama make any recess appointments for the foreseeable future. The Senate stayed in pro-forma session over the Memorial Day break, instead of adjourning for its usual recess, in part to prevent Obama from appointing Elizabeth Warren to head the Consumer Financial Protection Bureau. A dozen Senate Republicans have asked House Speaker John Boehner “to try to block President Obama from making recess appointments for the remainder of his presidency,” according to Politico.

At the beginning of the 112th Congress, a trio of Senate Democrats—Tom Harkin, Jeff Merkley and Tom Udall—tried to reform the Senate rules to prevent such rampant abuse of the filibuster and nomination process. But they were stymied by the leadership of both parties, who made sure the new rules did not pass. Sitting side-by-side at the State of the Union evidently took precedence. As a result, the absurd dysfunction of the contemporary US Senate continues unabated.

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