Nel's New Day

December 13, 2011

Republicans Deny Obama’s Nominees, Nullify Law

The Congressional recess is frequently a time when presidents appoint nominees to official positions after the Senate refuses to act on these nominations. President Obama missed his chance last summer because the Senate didn’t officially call a recess: a senator showed up each day to hold a fake meeting, that they call brief “pro forma” sessions, to avoid recessing. Those sessions, typically lasting just minutes with a handful of members present, exist because of Article 1, Section 5 of the U.S. Constitution, which states that neither chamber will adjourn for more than three days without the consent of the other. If House Republicans do not agree to the Senate’s recess or vice versa, those brief sessions are required. GOP members have forced several of these sessions over the last few months, precisely to block recess appointments.

The Congress is nearing its usual winter recess after the conservatives’ customary refusal to approve nominees. So what’s Obama to do if they continue to hold pro forma sessions?

Article 2, Section 3 of the Constitution states that if there is a disagreement about when the chambers should adjourn, the president has the power to “adjourn them to such time as he shall think proper.” The power has never been used before perhaps because no other Senate has refused to approve such a large number of nominees.

Also the 20th Amendment of the Constitution states that the Congress shall assemble at least once a year, with each session beginning at noon on Jan. 3. That means that the Congress has to break in order to assemble. Theodore Roosevelt once made a recess appointment during a recess that was less than a day long, creating an historical precedent. Doing this, Obama would bring criticism from Republicans in the Congress, but that is nothing new for him.

A major position left empty for over a year is the head of the Consumer Financial Protection Bureau. Because Senate said they would reject Elizabeth Warren before she was appointed, Obama named Richard Cordray to be the financial watchdog. He has impeccable credentials, having been Attorney General of Ohio, and 30 other state attorney generals wrote to the Senate requesting his approval.

Although the Senate could have passed Cordray with a 53-45 vote, the Republicans filibustered—again—which required 60 votes to bring the matter up for a vote. The only Republican who voted for cloture was Scott Brown (R-MA), a practical approach because he is running against the extremely popular Elizabeth Warren for his Senate seat.

As of last September the Republican stall campaign in the Senate had sidetracked so many of the Obama’s judicial nominees that he has put fewer people on the federal bench than any president since Richard Nixon at a similar point in his first term 40 years ago. Despite the Democrats’ substantial Senate majority, Republican filibusters have caused fewer than half of Obama’s nominees to be confirmed and 102 out of 854 judgeships to be vacant.

Six years ago 14 Senate Republicans and Democrats made an informal agreement that a filibuster would be used for presidential nominees only in “extraordinary circumstances” in order to break a logjam on judicial nominees. Four of these Republicans who participated in this agreement are still in the Senate, and some of them are continuing the filibusters. An example of this is the 54-45 vote that failed to bring cloture to debate regarding the judicial nomination of Caitlin Halligan to join the District of Columbia Circuit Court of Appeals.

Sen. Lisa Murkowksi (R-AK) was the only Republican to vote against the filibuster.  Murkowski said Halligan deserved an up-or-down vote. “I stated during the Bush Administration that judicial nominations deserved an up-or-down vote, except in ‘extraordinary circumstances’ and my position has not changed simply because there is a different President making the nominations,” she said.

Senate Judiciary ranking member Sen. Orrin Hatch (R-UT) voted present. Chuck Grassley (R-IA) said he opposed the nomination not because of Halligan’s views but also because he doesn’t believe the position is needed. The slot that Halligan was nominated for, to replace U.S. Chief Justice John Roberts, has been vacant for years.

Doug Kendall, president of the Constitutional Accountability Center, said in a release, “Let me be clear: Senate Republicans blocked a supremely qualified nominee today. Halligan is a lawyer’s lawyer. She clerked for the D.C. Circuit and the U.S. Supreme Court, she has a long and distinguished record of service in New York, and she has support across party lines–including from former George W. Bush nominee Miguel Estrada.  She is an exemplary nominee, supported by a majority of Senators. She was first nominated in 2010, and she should have been sitting on the D.C. Circuit by now.”

Cordray’s tenure would be five years if he were approved; federal judges are permanent. The more Obama nominees that can be avoided, the happier the conservatives will be. Their hope is that they will take over the Senate and presidency next year so that the entire judicial system will be as far right as possible.

Opposing Cordray has been profitable for several senators. Wall Street banks are fighting the new agency tooth and nail, and the 45 Republicans who vowed to block the agency’s director have received nice donations from the financial services industry, over $6.5 million from the financial industry in 2011 and nearly $125.6 million during their careers. Sen. Richard Shelby (R-AL), the ranking member of the Senate Banking committee (and lead signer of the letter), received at least $81,850 in 2011 and $6.2 million from the Finance, Insurance and Real Estate (FIRE) sector throughout his career.

What the senators are practicing in these two cases can be called “nullification.” Senators voted against Halligan because they didn’t see the need for the position (as declared by law), and they voted against Cordray because they don’t want the bureau to exist despite the fact that is passed Congress. They have been very open about their votes opposing the law that passed the bureau, not the person himself—in short, openly trying to keep an already-approved piece of legislation from taking effect. Sen. Orrin Hatch (R-UT) told the New York Times: “This is not about the nominee, who appears to be a decent person and may very well be qualified.” The Republicans are simply saying that they don’t like a law that was legally passed so they are going to behave as if it didn’t.

It’s not the first time that the Republicans have used nullification during Obama’s term. They refused to allow a vote on Don Berwick, Obama’s first choice to run Medicare and Medicaid–not because they seriously doubted his qualifications but because they don’t like the Affordable Care Act.

Nullification may have led to the Civil War. In 1830 Vice-President John C. Calhoun theorized that states had the power to “nullify” federal laws, using arguments from Thomas Jefferson and James Madison opposing the Alien and Sedition Acts. When he finally understood the danger of this position, he worked to develop a more bipartisan attitude, but the southern states continued to simmer until South Carolinacame to boil thirty years later followed by ten other states.

According to Article IV of the U.S. Constitution, Acts of Congress “shall be the supreme law of the land…anything in the Constitution or laws of any State to the contrary notwithstanding.” Every member of Congress takes an oath to “support and defend” the Constitution and swears that they take that oath “without mental reservation or purpose of evasion.” Senate Republicans are pretending that they don’t have to follow the Constitution. The question is whether what they are doing is unconstitutional

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