Ari Berman | The Nation

Ari Berman

Ari Berman

 On American politics and policy.

Obama's Pivot to Jobs Long Overdue

The Obama administration is currently making the curious argument that cutting spending and restructuring the social safety net will make it easier for them to pivot to the issue of jobs.

Jonathan Bernstein finds some credence to this claim, but count me as a skeptic. For two years a stubbornly high unemployment rate has been the gravest problem facing this nation. The Obama administration shouldn’t need to pivot to the issue of creating jobs—it should have been the top priority for the administration from day one and every day since.

Yet the administration keeps arguing that it has done everything it could do on the jobs front. First, it argued that the stimulus would be sufficient; then it argued that there was no political will for a second stimulus once it became clear that the first wasn’t big enough; then it said that a jobs plan couldn’t pass the Republican Congress, and now it claims that it can’t do anything on jobs without first reducing the deficit, or that a deal in and of itself will boost the lagging economy.

All we seem to get are more and more excuses from the White House. “The truth is that creating jobs in a depressed economy is something government could and should be doing,” Paul Krugman wrote on Monday. “Yes, there are huge political obstacles to action—notably, the fact that the House is controlled by a party that benefits from the economy’s weakness. But political gridlock should not be conflated with economic reality. Our failure to create jobs is a choice, not a necessity—a choice rationalized by an ever-shifting set of excuses.” If you don't believe there's anything the federal government could be doing on the jobs front, check out Robert Reich's six-point jobs plan, which he tweeted last week.

Not only is the White House not pushing as aggressively as they could to create jobs, they’re also embracing the right-wing talking points of their opponents, Krugman notes, such as the Hoover-esque claim that cutting spending will jumpstart an economic recovery, which worked out brilliantly for Hoover. Suddenly the president has become the anti-Keynes, which makes it hard to believe that he’ll start arguing for Keynsian policies to boost the economy following any debt deal.

I have a difficult time seeing how a grand bargain on the debt ceiling will make it easier for the administration to pass an infrastructure bank or other job-creation ideas through Congress, when Congressional Republicans' stated goal is to do everything in their power to bring down Obama in 2012. Nor will independent voters—the supposed key constituency of deficit reduction—suddenly warm to the Obama administration if the economy remains in the tank. It seems pretty obvious that the 2012 election will be determined by the magnitude of the unemployment rate and growth, or lack thereof, in real disposable personal income, not the size of the deficit. I’m not exactly sure why Obama seems to believe otherwise.

A number of pundits are arguing this week that the president is simply following the same playbook that Bill Clinton used to win re-election in 1996. But there are a number of problems with the Clinton parallels, as I detailed in a Nation article, “Obama: Triangulation 2.0,” earlier this year.

Number one: Clinton had the benefit of a rapidly growing economy. Obama does not.

Number two: Clinton won the battle of public opinion by resisting sharp Republicans cuts to “Medicare, Medicaid, education and the environment.” Obama, on the other hand, has proposed raising the enrollment age of Medicare, from 65 to 67, and major reductions in Medicare spending.

Number three: Clinton had Newt Gingrich as a foil. John Boehner and Eric Cantor, though beholden to the Tea Party, are more formidable foes for Obama.

We need to raise the debt ceiling. Only crackpot Tea Partiers and hopefuls for the 2012 GOP presidential nomination argue otherwise. But if the Obama administration and leaders in both parties had tackled the jobs crisis with the same urgency that they’ve shown in debt ceiling negotiations, there would have been no need to talk of one day pivoting to jobs.

--Ari Berman is the author of Herding Donkeys: The Fight to Rebuild the Democratic Party and Reshape American Politics. You can follow him on Twitter at @AriBerman.

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Democrats to Obama: Don’t Cut Social Security and Medicare

“I earned capital in the campaign, political capital, and now I intend to spend it,” President Bush said after the 2004 election. He used that capital to push for the privatization of Social Security. By the time the fight was over, after both Democrats and Republicans rebelled against his radical scheme, Bush had almost no political capital left. What should have been the high point of the Bush Presidency instead signaled the beginning of the end.

President Obama could soon be facing a similar moment if he decides to put significant cuts to Social Security and Medicare on the table as part of a deal with Republicans to raise the debt ceiling, as the Washington Post and New York Times are reporting. The president and Congressional leaders will meet again at 11 am today to discuss the issue.

Leaders of both parties have agreed that the debt ceiling must be raised to avoid a potential economic catastrophe. Yet the GOP has had the upper hand in this discussion from day one, insisting that any agreement—which everyone assumes is inevitable—includes massive spending cuts. Republicans know they made a huge mistake by voting for Paul Ryan’s radical budget plan, which led them to lose a special election in New York’s 26th Congressional district and could lead to many more GOP losses in November 2012. They’ve been begging the White House to give them a lifeline on Medicare. It seems they may get one and then some, with a Democratic president offering to cut two of the signature achievements of his party—not to mention two of the most popular government-run programs in the country—in the midst of a prolonged recession.

By agreeing to such a deal, Democrats would be neutralizing their best argument in the coming campaign, writes the New York Times:

The degree that any deal wins bipartisan support on slowing the growth of Medicare, for example, it would deprive Democrats of what has been one of their most potent arguments heading into 2012: their assertion that Republicans would gut the traditional Medicare system and leave older Americans vulnerable to rapidly rising health care costs.

According to the Times, here’s how the White House will attempt to sell the deal:

They argue that Democrats will be in stronger shape politically heading into November 2012 if they help enact a credible deficit reduction deal, allowing them to mount the argument that they protected Medicare from a much more drastic overhaul by Republicans.

That sounds eerily similar to the argument the White House made about its response to the economic crisis—it could’ve been so much worse! And look how that turned out in 2010.

The unemployment rate—not the size of the deficit—will determine the election results of 2012. You’d think that point would be self-evident by now. But for months Washington has been caught in what Greg Sargent calls a “Beltway Deficit Feedback Loop,” obsessed with cutting spending but oblivious to creating jobs. These very spending cuts will not only be politically unpopular, they may also lead to more job losses—a negative double whammy for the White House.

That’s why many Democrats are eyeing this deal wearily. Rhode Island Senator Sheldon Whitehouse told the Times:

“Depending on what they decide to recommend, they may not have Democrats. It is a risky thing for the White House to basically take the bet that we can be presented with something at the last minute and we will go for it.”

Harry Reid and Nancy Pelosi have both said that Social Security cuts should be off the table, as have members of the Congressional Progressive Caucus. Said Representative John Garamendi at the Capitol last month:

“You want a fight? If anybody in this building wants to take on Social Security—privatize it, change the benefits by altering the consumer price index or by any other method—know this: You’ve got a fight on your hands.”

Members of the Congressional Progressive Caucus reiterated that message in a letter to the White House today. Sargent has an excerpt:

First, any cuts to Social Security, Medicare and Medicaid should be taken off the table. The individuals depending on these three programs deserve well-conceived improvements, not deep, ideologically driven cuts with harmful consequences. These cuts would hurt households and damage the country’s economic recovery as well.

Second, revenue increases must be a meaningful part of any agreement. Tax breaks benefiting the very richest Americans should be eliminated as part of this deal. Republican insistence on protecting these tax breaks will force middle-class families to shoulder the burden of even deeper budget cuts, and this is unacceptable.

Time’s Michael Crowley nicely summarized today why Democrats are angered by President Obama’s handling of the debt ceiling: he failed to use his leverage by extending the Bush tax cuts in December, he ineptly framed the debate and he caved to Republicans on the specifics (it wouldn’t be the first time).

This deal could easily fall apart due to Congressional resistance and blowback from the Democratic base. The White House’s latest “big idea” may very well be greeted as a giant thud.

—Ari Berman is the author of Herding Donkeys: The Fight to Rebuild the Democratic Party and Reshape American Politics. Follow him on Twitter at @AriBerman.

Van Jones Previews the American Dream Movement

Economic justice was a major theme at last week’s Netroots Nation conference and Van Jones’s keynote speech previewing a new “American dream movement” was widely considered the highlight of the progressive summit.

Jones and MoveOn.org will officially launch the new “Rebuild the Dream” campaign in New York City tonight. This morning I interviewed Jones and MoveOn executive director Justin Ruben about what the campaign will look like and what they hope to accomplish in the coming year.

Jones, a former green jobs adviser to the Obama administration, envisions “Rebuild the Dream” as a progressive response to the Tea Party. “The entire DC establishment, in both parties, has been captured by the bad logic of war and austerity, and the gravitational pull of the Tea Party,” says Jones. “The peace and prosperity agenda that most of us voted for in 2008 doesn’t have a center of gravity anymore and that’s why people feel so demoralized. But we’re about to re-establish that center of gravity.” The aim is to “change the conversation” by building a movement for economic justice that will advocate on behalf of veterans returning from Iraq and Afghanistan, college graduates who can’t find a job, Americans who’ve lost their homes or whose mortgages are underwater, and embattled cops, firefighters, nurses and teachers.

The pushback to the nation’s austerity craze began in Wisconsin, which inspired Jones and MoveOn to launch their new campaign. “Madison is bringing out a new sense of hope and determination among people in the political process,” says Jones. Adds Ruben: “We were seeing energy after Wisconsin, from our members, that we hadn’t seen in a really long time, especially on anything related to the economy.” Now they want to connect what is happening in Wisconsin to the rest of the country under one common banner. “There will be more moments like Wisconsin,” says Ruben. “And we’d be crazy to try to predict what they’ll be. Part of what we’re doing is creating a context so that if Wisconsin happened now, there would be even more mobilization in the country around it. It won’t just be solidarity with Wisconsin, but will spark more energy around the country that will be locally and nationally focused.”

Along with MoveOn, some of the most influential groups in the progressive community have signed on to the “Dream” campaign, including the AFL-CIO, SEIU, Campaign for America’s Future and the Center for Community Change. The goal is to move beyond dependence on President Obama and the national Democratic Party by building and boosting independent sources of power, which can then persuade elected officials to support a progressive economic agenda. David Dayen of Firedoglake summarized this nicely after watching Jones’s speech at Netroots Nation:

It’s also a moment to create a movement based on principle. In a very telling moment in Jones’s PowerPoint presentation, he described how the issue groups filtered up to the Obama meta-brand in 2008, and in one move, he wiped out Obama from the picture in favor of the American Dream Movement. In other words, an icon or a symbol of progress won’t cut it anymore. The movement is sustained not based on an individual but on an idea. It’s a movement that says “I support Democrats when they support me.” It’s the only way for a movement to endure, rather than become subservient to a personality. And we’ve seen proof of this just this year in places like Wisconsin and Ohio.

The first step, Jones says, will be to create a giant crowd-sourced document and hold thousands of house parties over the summer to solicit ideas for a new “Contract for the American Dream.” The coalition will then use that document as an organizing and activism tool, pressing elected politicians to support the “Dream” agenda, possibly as early as over the August Congressional recess. These efforts will be bookended by the national Take Back the American Dream Conference in October. Maybe by that point, Washington will start to take notice.

--Ari Berman is the author of Herding Donkeys: The Fight to Rebuild the Democratic Party and Reshape American Politics. Follow him on Twitter at @AriBerman.

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The Koch Brothers' Echo Chamber

This past weekend, 1,000 conservative activists gathered in Minneapolis for the RightOnline conference. The “grassroots” summit was convened by the Americans for Prosperity Foundation, which was founded by the billionaire Koch brothers, who are among the most prolific funders of the conservative right.  

A new video by Robert Greenwald and his Brave New Foundation illustrates the Koch brothers’ echo chamber by looking at one prominent example: Social Security. “What the Koch brothers want to do is destroy Social Security, because Social Security is a federal government program that has been enormously successful,” says Senator Bernie Sanders, who narrates the video.

The video shows how the Koch’s perpetuate the myth that Social Security is in crisis by funding prominent think tanks like the Cato Institute and the Heritage Foundation, pundits on Fox News and CNBC, and politicians like Paul Ryan. The $28.6 million that flows to the think tanks leads to over 300 policy papers advocating the dismantlement of Social Security, which in turn provides new fodder for conservative talking heads and politicians. The film debunks three top “Social Security distortions”—that the retirement age must be raised, that the program is going bankrupt, and that Social Security must be privatized. “The Koch brothers job is to do everything they can to dismember government in general,” said Sanders, “and if you can destroy Social Security, you will have gone a long way forward in that effort.”

 Here’s the video:

Tea Party Darling Michele Bachmann Rallies Conservative Convention

Minneapolis—This week Joe Klein had an interesting piece in Time about how the 2012 GOP presidential race is shaping up to be a battle between outsiders vs. insiders. Mitt Romney is the obvious insider of choice. Michele Bachmann, despite being a three-term member of Congress, is making a strong push to be the outsider who rallies the GOP faithful against the party establishment. Her appearance at the conservative RightOnline conference in Minneapolis today illustrated why she may be the dark horse to watch this cycle. (It’s also worth noting that the “grassroots” conference is run by the Koch Brothers–funded Americans for Prosperity Foundation.)

Bachmann drew enthusiastic cheers from the packed ballroom at the Hilton—complete with a gaudy blue and red stage with white stars—by talking up her opposition to Obamacare (she’s sponsored a bill to repeal it), the financial and auto bailouts, and raising the debt ceiling. “When are we going to buck up, when are we going to say no?” she asked rhetorically. Don’t be surprised if she leads the opposition among House Republicans to any impending deal between the Obama administration and the GOP leadership to raise the debt ceiling.

Bachmann’s making an unapologetic bid for the Tea Party vote, saying the movement represents far more voters than the “right-wing fringe of the Republican Party” and was “just gaining strength.” She asked the crowd to hold up a $1 bill to illustrate how the nation is drowning in debt. “42 cents on the dollar is borrowed money!” she said. Bachmann even talked about the unemployment rate among black and Hispanic Americans in front of the nearly all-white, predominantly middle-aged crowd. And the avowed social conservative kept the focus on jobs and the economy, despite ending her speech by quoting a passage of the Bible about the Philistines, reflecting the newfound center of gravity among the Republican base.

Unlike compromise candidates like Romney, who are considered more electable but have in the past taken positions at odds with the GOP base, Bachmann is an unapologetic Tea Party disciple. “Bachmann-Palin,” one crowd member yelled during her speech. Although a huge oil painting of Palin rested just outside the ballroom, Bachmann is positioning herself as a calmer, saner, more intelligent version of the Mama Grizzly. She seems far less crazy in person than she does on TV. Democrats would be smart not to underestimate her potential appeal. (Though she couldn’t escape a “glitter bomb” protester at the end of her speech.)

The GOP presidential primary is starting to look eerily familiar to the Democratic presidential primary in 2004. If Mitt Romney is John Kerry, the flawed yet formidable frontrunner, Michele Bachmann could become Howard Dean, the bomb-throwing hero of the grassroots. It’s insurgent vs. establishment all over again. As is usually the case, I’m guessing the establishment will ultimately prevail, although the attendees at RightOnline might have something to say about that.

Netroots to Obama White House: Where’s the Love?

Given the angst about the Obama administration at this year’s Netroots Nation conference—from the president’s policies on Afghanistan and civil liberties to his prioritization of deficit reduction over jobs—there was much speculation about what type of reception White House Communications Director Dan Pfeiffer would get during his appearance Friday morning. And sure enough, Daily Kos moderator Kaili Joy Gray—a k aAngry Mouse”—grilled Pfeiffer about the president’s positions on jobs, gay marriage, Libya and his reluctance to fight back against the GOP and use his executive authority to circumvent Republican obstruction.

Things were testy from the start, when Gray asked Pfeiffer why Obama has not introduced a new jobs plan to boost the lagging economy. “It is a false decision to say we don’t have a jobs bill,” Pfeiffer responded. “We have a number of proposals in Congress that have been blocked by Republicans.” He pointed to a national infrastructure bank, a national wireless program, clean energy investments and tax credits for small businesses as examples. “You can expect the president will unveil a number of new initiatives,” Pfeiffer said when pressed on the issue.

Also on the economic front, Pfeiffer was asked if the White House would draw a line in the sand during negotiations with the GOP over raising the debt ceiling. “On Social Security, the president will do nothing to slash benefits, privatize the program or change the nature of the program,” Pfeiffer responded. “The same with Medicare.” But Pfeiffer refused to say whether the retirement age would be raised for either program. “I'm not going to have a negotiation with Republicans here on the stage with you,” he answered somewhat testily.

The discussion also touched on a number of other issues, including foreign policy and gay rights. “When will you stop kicking gay people out of the military?” Gray asked, referencing the implantation date of “don’t ask, don’t tell.” “As soon as we possibly can,” Pfeiffer answered.

She also pressed the communications honcho on whether Libya would turn into another Vietnam, and why the White House has not sought Congressional authority for the mission. Pfeiffer answered that the administration “went in in a limited way with a multilateral coalition,” and was not in violation of the War Powers Act—an answer unlikely to satisfy critics of the Libya mission in Congress.

Gray asked Pfeiffer why Obama hadn’t filled vacant administration posts blocked by the GOP via recess appointments and whether Elizabeth Warren would be named the permanent director of the Consumer Financial Protection Bureau. Pfeiffer praised Warren’s “amazing work in getting that bureau stood up,” but would only say that “she’s one of the people who is under consideration, and we hope to have an announcement on that soon.”

Despite her relentless questioning, Gray didn’t get much out of the defensive Pfeiffer, and her strident tone even alienated a number of Obama’s progressive critics in the room. “This #NN11 questioner does not represent the netroots and is blowing a valuable opportunity,” wrote Adam Green of the Progressive Campaign Change Committee on Twitter. “Overall critique of #Nn11 questioner: she was out of the loop on what progressives are doing to strategically pressure Obama to fight.”

Indeed, the Q&A was unlikely to change the White House’s opinion of the so-called “professional left,” or vice versa. Thus far, the panels at Netroots Nation have been largely preoccupied with the Republican Party’s assault on workers in states like Wisconsin, and the corrosive effect of corporate money and the Supreme Court’s Citizens United decision on our political system. (Full disclosure: I was on a panel yesterday about “Structural Barriers to Progressive Success.”) What the Obama administration is and is not doing almost seems like an afterthought.

For other Netroots Nation coverage, check out John Nichols on Feingold and Ari Melber on Wisconsin.

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Has Obama Found a Replacement for Elizabeth Warren at the CFPB?

According to Bloomberg News and other news outlets, the Obama administration is considering appointing Raj Date, a top deputy to Elizabeth Warren at the new Consumer Financial Protection Bureau (CFPB), as the bureau’s permanent director before it goes live on July 21. The articles are all attributed to “a person familiar with the discussions,” which makes it clear that the White House if floating Date’s appointment as a trial balloon, to gauge reaction from financial reform advocates, the business community and members of Congress. This is not an entirely new story—Reuters reported that "close associates" of Warren were under consideration back in April—but this is the first time Date has been named as a potential candidate.

Date is well-regarded in the business world and among reform advocates, which is why he’s an attractive option for the administration. He worked for Capitol One and Deutsche Bank, served on the board of a peer-to-peer lending company, Prosper Marketplace, started his own economic policy research firm, Cambridge Winter Center, and was a board member at Demos, a liberal think tank. Heather McGhee, director of Demos’ Washington office, called Date “one of the most effective advocates for consumer financial protection during the debate that culminated in the Dodd-Frank Act.”

Which isn’t to stay he’s a better pick than Warren, who remains the preferred candidate among financial reform advocates. He’s still a banking industry veteran at a time when the public remains skeptical of the banks, and it’s unclear if he has the moxy and stature to go up against the $3 trillion financial services industry. He's a skilled technocrat, adept at working behind the scenes, but not necessarily the type of dynamic leader and charasmatic public face the new bureau needs in order to establish its identity and credibility among the public. The CFPB was Warren’s idea, and she’s the most qualified person to run the bureau.

Senate Republicans have made clear they’ll try to block whoever the administration picks to formally run the CFPB, which virtually guarantees a recess appointment. The banking lobby hates the bureau as much as Warren, which means that any “consensus candidate” is bound to face fierce resistance once the CFPB is up and running. Support continues to grow for a Warren appointment, including an endorsement today from the AFL-CIO, which is by far the biggest group to come out in favor of a recess appointment thus far.

Yet the Obama administration seems determined to push Warren out the door at the very moment it needs her the most. She’s the best spokesperson Obama has on economic policy, especially compared to a Wall Street–friendly stiff like Tim Geithner, and has spent her whole life fighting for the middle class, which is the stated priority of the Obama administration. The consumer bureau is the most popular and tangible aspect of Dodd-Frank, which was the most popular piece of legislation enacted by the administration in its first two years in office. Yet the bureau and Dodd-Frank are under attack from the banking lobby and Congressional Republicans, who’d like to return to the pre–financial crisis status quo. Any retreat by the Obama administration will hand opponents of reform a major victory—and embolden them to go further.

Four of the nation’s biggest banks—JP Morgan, Bank of America, Citigroup and Goldman Sachs—are among the ten most unpopular companies in America, according to a new Harris Interactive poll. The public hates the banks. And they love Warren and consumer protection. Who to side with should be a no-brainer for the Obama administration.

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Bye Bayh: Vice Presidential Aspirant Becomes K Street Sellout

The Chamber of Commerce spent $17 million on federal lobbying in the first quarter of this year, far more than any other group, and has an entire division devoted to fighting the 2010 Dodd-Frank financial reform law. It’s fair to say that they’re obsessed with defanging nearly every major piece of legislation enacted by the Obama administration, with financial reform at the top of the list.

To that end, the Chamber recently hired former Bush Administration chief of staff Andy Card and former Indiana Democratic Senator Evan Bayh to lead its new “grassroots” anti-regulation campaign over the summer. According to Chamber President Tom Donahue, new BFFs Bayh and Card “will carry a bipartisan message on regulatory reform out around the country through a ‘road show’ of speeches, events, and media appearances.” Not so long ago, Bayh was a possible vice presidential candidate for Obama and a future presidential aspirant. Now he’s just a hired gun for big business. In a delicious bit of irony, Bayh will spend the summer denouncing the very financial reform legislation he voted for while in the Senate. Whatever principles he ever had are now long gone.

The Chamber’s high-profile hires are the latest indication of how corporate America is fighting hard to roll back financial reform. Last week I detailed in The Nation how the banking lobby is trying to weaken the new Consumer Financial Protection Bureau before it goes live on July 21 and prevent Elizabeth Warren from becoming its permanent director. Today the New York Times reported that the implementation of Dodd-Frank is way behind schedule on a number of fronts. “So far, 28 of the financial overhaul rule-making deadlines have been missed, according to Davis Polk, a law firm that is tracking the rules,” writes Louise Story. “Of the 385 new rules to be written, the law firm says, regulators have completed only 24 requirements; they were supposed to have taken 41 such actions by now.” As Pro Publica recently noted, Dodd-Frank is quickly becoming a dud.

Congressional Republicans and their corporate benefactors would like nothing more than for financial reform to die via inertia. Rep. Carolyn Maloney (D-NY) calls opponents of Dodd-Frank members of the “Financial Crisis Never Happened Caucus.” Absent strong action from the federal government, the Obama Administration may soon become its newest member.

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Senate Republicans Block Yet Another Well-Qualified Obama Nominee

In April 2010, President Obama nominated Peter Diamond, a Nobel Prize–winning economist and MIT professor, to a seat on the Federal Reserve Board of Governors. On three different occasions the Senate Banking Committee approved his nomination. Yet Republicans in the Senate, led by Alabama’s Richard Shelby, blocked his confirmation because they disagreed with his economic policy views. “Dr. Diamond is an old-fashioned, big government Keynesian,” Shelby said. Diamond, who finally had enough of the endless delay and partisan attacks, withdrew his nomination today, explaining why in a New York Times op-ed. “Last October, I won the Nobel Prize in economics for my work on unemployment and the labor market,” he wrote. “But I am unqualified to serve on the board of the Federal Reserve—at least according to the Republican senators who have blocked my nomination.”

The absence of a Nobel Prize–winning economist at the Fed at a time of economic crisis is particularly galling. L’affaire Diamond is a perfect illustration of how Senate Republicans have abused and warped Senate rules, which I blogged about last week. Diamond suffered the same fate as other well-qualified Obama nominees, like Goodwin Liu and Dawn Johnson, who Republicans stubbornly refused to confirm.

As I noted last week, of the 1,132 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.

You’d think such obstruction would force Obama to circumvent the traditional nomination process and fill these vacant posts via recess appointments. President Bush used that power 171 times during his presidency. But Obama has done so only twenty-eight times. 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.

Obama has no choice but to act. If the Senate won’t fulfill its constitutional role, the president must.

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GOP Obstructionism Reaches New Heights

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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