With Senate Republicans again threatening to block several of President Obama's nominees, in this case 3 for the US Court of Appeals for the District of Columbia Circuit, and Chairwoman of the Federal Reserve, pressure is once again building on Harry Reid to push through some procedural reforms.
This Court of Appeals is one of the most powerful and least understood courts in the country. It has primary jurisdiction over administrative rulemaking, and thus has the power to nullify years of careful and intensive rulewriting by agencies. Republicans, who have come to universally detest rulemaking in the public interest, fully recognize the value of this regulatory choke-point, and have done everything they can to maintain partisan control. Republican Senators have recently made the patently absurd claim that filling vacancies on this court constitutes "court packing." They have also claimed that additional judges are not necessary, since the current caseload is not very high, as if the reason for having 11 judges is to distribute caseload! Everybody knows that courts have a specific number of judges so they can be skewed in a political direction, not to satisfy workload demands.
We all know that the rules written under Dodd-Frank have already taken too long to be finalized, but this court has already struck down an SEC rule that would give investors more power to throw out corporate board members. A more recent SEC rule on disclosure of CEO/Worker pay ratios will also likely be presented in front of this court. The court's decision in the spring to invalidate President Obama's recess appointments put the leadership of Richard Cordray at the CFPB into question, until he was finally confirmed by the Senate in July when Reid came within hours of "going nuclear."
The power of this court should disturb any American who believes that their democratic government should be making laws to serve their interests. The process of judicial review of regulations basically boils down to unaccountable old white judges, and their law clerks who are often fresh out of law school, making judgements on incredibly complex regulations that they cannot possibly understand, and often overruling the expertise of dedicated and underpaid public servants. What people don't realize is that Congress can write whatever statutes they want, but none of that matters unless the executive agencies can effectively write and enforce regulations.The politically charged US Court of Appeals for DC stands in the way of this process, and effectively has the power to nullify the legislative decisions of our elected representatives. And since the circumstances of their nominations/confirmation are so bitterly partisan, no one can say with a straight face that these judges are apolitical.
The recent confirmation of President Obama's nominee Sri Srinivasan brings the court to a 4-4 political tie. Filling the remaining three seats would bring about a 7-4 Democratic advantage, which is what Senate Republicans are trying to prevent. Senator Rand Paul (R-TinFoilHatistan) has also threatened to put a hold on Janet Yellin. However it remains to be seen if enough of his Republican colleagues will join him to block a cloture motion on her confirmation, since enough Republicans understand the importance of the Fed and will probably follow the orders of their Wall Street owners who want certainty from their central bank.
So that brings us back to Majority Leader Reid and what his strategy will be for these nominations. While Reid and his staff are tight lipped and rarely make proclamations of policy, it is obvious that he remains reluctant to use the "nuclear option." I do not blame Reid or any of the more cautious Democrats for not wanting to go this far. The ability of Senators to filibuster motions that they do not approve of is one of the most important powers in all of US government, and thus one that should not be haphazardly relinquished. Changing this tradition would be a sea change in the operations of the US Senate and make it function more like second majoritarian chamber, like the House of Representatives. Many older Dems worry that getting rid of the filibuster may screw them if they eventually become the minority, but in my opinion this argument ignores political reality. The Democrats are not, and never have been, nearly as unified of a party as the Republicans are. No Democratic minority leader will ever have as much power as Mitch McConnell, because Democrats are never as easy to whip around as Republicans are. If the shoe was on the other foot and Republicans were in the majority, I highly doubt that Democrats would have the party rigidity to mount as many filibusters as the Republicans have since 2007. Majority Republicans will always be able to peel off a few timid Democrats in the name of "bipartisanship" and whatnot; this case obviously does not work the other way.
The other thing is, the filibuster can be used fairly if a minority party has recently lost control, and has legitimate reasons to oppose some majority measure that is too extreme. A minority can sensibly use a filibuster to block such extreme measures, while they work to convince the public to hand them back control. But Republicans had a chance to take back the Senate in 2008. They lost. They had a chance to take back the Senate in 2010. They lost. They had a chance to take back the Presidency and Senate in 2012. They lost. At this point, the filibuster is just a desperate tool of unpopular, sore losers who are preventing the country from moving forward in direct opposition to the public's desires. This is a totally illegitimate, abuse of the filibuster that Harry Reid should dispense with as soon as possible. I say to hell with the potential consequences down the road- this Republican extremism has to be deal with, here, and now.
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