WSJ's Latest Frivolous Cry For Opposing Obama Nominee Demonstrates Need For "Nuclear Option"

Blog ››› ››› SERGIO MUNOZ

The Wall Street Journal demonstrated why a Senate rule change that prevents filibusters against executive and judicial nominations may be overdue when it baselessly opposed yet another of President Obama's picks.

Continuing its seemingly knee-jerk resistance to any and all of the president's nominations, the WSJ recently pushed the GOP to oppose making Tony West's job of acting associate attorney general permanent without a legitimate reason for obstruction. Rather, the WSJ floated the idea that West should be opposed because he worked at the same address as Labor Secretary nominee Thomas Perez and was consulted on a civil rights case that the WSJ has scandal-mongered. From WSJ editorial board member Mary Kissel's column:

[S]enators shouldn't miss the chance to explore Mr. West's acquiescence in the legal quid pro engineered between late 2011 and early 2012 by his colleague, Justice civil-rights chief, Thomas Perez.

[...]

[West has] promised to "work to ensure that legitimate whistleblowers are taken seriously and treated fairly and lawfully."

Did Mr. West change his mind about that statement, or did he let Mr. Perez make decisions about an important case--one that could have netted taxpayers some $200 million--on his behalf? Either way, the episode raises questions about his legal judgment. That may not be enough to stall his confirmation, but Mr. West certainly deserves scrutiny for this sorry episode.

This "shady quid pro," as previously dubbed by the WSJ, has been repeatedly debunked as a trumped up non-scandal among the many smears used to obstruct the Labor Secretary nomination of Perez.

Kissel has a record of identically using this smear against anyone "involved in 'communications'" with Perez on this matter. Such targets include the president's most recent nomination to the U.S. Court of Appeals for the D.C. Circuit, the bipartisan-supported Principal Deputy Solicitor General Srikanth Srinivasan. Senate Majority Leader Harry Reid (D-NV) recently indicated that he has reached his breaking point with the parallel GOP obstructionism to the president's nominations, fueled by right-wing media such as the WSJ.

If Republicans continue to filibuster the president's picks for labor secretary, Environmental Protection Agency administrator, director of the Consumer Financial Protection Bureau, and the remaining empty seats on the D.C. Circuit, Reid is reportedly planning to revisit filibuster reform in July, so as not to endanger the progress of immigration reform. Interestingly, Reid's announcement of the July deadline immediately led to an up-or-down vote on Srinivasan, who was finally confirmed by the Senate. If these other highly qualified nominees are blocked, however, it will be clear that a rule change - the so-called "nuclear option" - must be seriously considered to allow up-or-down votes for executive and judicial confirmations as a matter of course.

It's about time.

Consistent with their unsuccessful plan to make the president a one-termer and goaded by right-wing media, the GOP's obstructionism of the president's agenda has included unprecedented filibustering of those officials tasked with implementing and overseeing its components - executive agency heads and judges. The latter, especially those on the increasingly important D.C. Circuit who have jurisdiction over much of the president's priorities in financial reform, health care, labor relations, and environmental law, are just as important as cabinet-level nominees such as Thomas Perez, Gina McCarthy, and Richard Cordray. The fate of the president's efforts to address the climate change crisis is a prime example, as explained by New York magazine's Jonathan Chait:

The biggest piece of President Obama's second-term agenda is his widely expected plan for the Environmental Protection Agency to issue new carbon regulations for power plants, a move that could bring the United States in line with the greenhouse-gas-reduction goals it agreed to in Copenhagen and open the way for an international treaty to control climate change. If the administration unveils such a plan, conservatives will undoubtedly challenge its legality. The legal challenge won't take place for two years, but the two sides are preparing for war already. The field of battle will be the Federal Appeals Court in Washington, D.C.

The D.C. Circuit, as the appeals court covering legal issues arising within the nation's capital, has assumed a large and growing influence in the ideological wars over the scope of government, and over the last decade its appointments have provoked bitter conflict. During George W. Bush's second term, Democratic Senators filibustered D.C. circuit nominees they considered extreme, causing Republicans to threaten to eliminate the filibuster for judges. Democrats called the threat the "nuclear option," and the two sides negotiated a resolution when Democrats backed down and agreed not to filibuster judges except in extraordinary circumstances. Bush's judges on the D.C. Circuit have inserted themselves even more heavily into the policy debate by striking down a slew of regulations in health care, pollution, labor, and other areas, turning the court into one of the right's most potent weapons during the Obama era.

Since President Obama took office, four vacancies have opened on the D.C. Circuit Court, and Obama has not managed to seat a single justice to fill any of the slots.

The reason the president has not been able to fill these D.C. Circuit slots (and many others) is because Republicans - after Bush's right-wing nominees were confirmed - almost immediately abandoned the "extraordinary circumstances" threshold for objecting to an opposing party's judicial nominations.

Instead, the GOP has shamelessly slowed to a crawl or outright blocked almost all of the president's nominees, even those who are supported by both parties and are obviously highly qualified and non-controversial. It is this unprecedented filibustering, combined with other Republican obstructionist acts, which appear to have driven Reid to his July threshold. The Alliance for Justice recently detailed the extent to which Republicans have largely ignored the "extraordinary circumstances" truce and warned the upcoming up-or-down votes will be "critical tests" for whether Republicans can "show that they are willing and able to staff the very institutions that allow our democracy to function":

The Gang of 14 - seven Democrats and seven Republicans - agreed to filibuster judicial nominees only in "extraordinary circumstances."  But an analysis of contested cloture votes on judicial nominations over the past eight years shows that, when push came to shove, only the Democrats in the Gang of 14 defined "extraordinary" in a way that's recognizable to ordinary Americans.

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[I]f even the most purportedly reasonable and moderate Republicans of eight years ago cannot be counted on today, how can we possibly expect to see forward movement in the Senate?
We will see critical tests in the coming weeks and months, not only on judicial nominations, but also on the President's nominations to the Consumer Financial Protection Bureau, the Department of Labor, the Environmental Protection Agency, and the National Labor Relations Board.  It's high time for Republicans to show that they are willing and able to staff the very institutions that allow our democracy to function.

Otherwise, it looks like more and more Senate Democrats are waking up to the realization that unilateral disarmament - like the Gang of 14 and the failed "handshake agreement" from earlier this year - leaves you in a precarious position during a nuclear standoff.

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