Will Republicans govern?

by Rob Schofield, NC Policy Watch, November 17, 2014.

Congressional GOP has a golden opportunity during the lame duck session to show it’s not just about obstruction

As anyone who’s ever obtained real, decision-making authority can attest – be it in politics, a workplace, a sports team or a family – there’s a big difference between critiquing decisions and making them. It’s one thing to complain about the trains running late, but it’s quite another to be the one charged with solving the problem.

For most of American history, the overwhelming majority of elected officials have figured out a way to cope with this truism. When the chips were down, most American political leaders figured out a way to seek and broker compromises and, for lack of a better phrase, do their jobs.

There have been exceptions, of course. Compromise became impossible prior to and during the Civil War and, to a lesser extent, during a few other brief episodes. Sadly, we seem to be in the midst of one of those episodes right now – a period during which agreement on simple concepts like funding basic public services and structures and following time-honored procedures in staffing government continually elude the men and women who run Congress.

Last week’s election in which the Republican Party gained majorities in both houses of Congress may signal a break in this pattern or perhaps a worsening of it. According to some analysts, the new GOP congressional majorities tilt more toward “the establishment” and away from the Tea Party wing. According to others, however, the new majorities are the starter’s signal for a full-fledged campaign to “repeal” the Obama presidency and even impeach the President himself.

Early indications

At this point, it’s hard to know for sure what will come in January of 2015, but we should get a pretty good idea in the coming days as Congress commences its post-election “lame duck” session.

Will conservatives, bolstered by their election victory, try to dictate everything or will they, cognizant of the impending decision-making responsibility, look for ways to govern? One of the first indicators will be what happens with a slew of pending and stalled nominations to serve on the federal courts.

As was noted on The Progressive Pulse blog the other day, going into the 2014 lame duck period, there are 64 current judicial vacancies and 34 nominees pending in the Senate. And as has been detailed at length in this space previously, two of these vacancies are here in North Carolina and one has sat empty for eight years.

In such an environment, it is obviously vital for the Senate to stay in session until every judicial nominee on the floor gets a yes-or-no vote. If these judges are not confirmed, the federal judiciary will simply not be adequately staffed to handle the numerous critical issues that come before it and the wheels of justice (and of government generally) will slow significantly and unnecessarily.

Happily, there are historical precedents for this kind of swift action: In the 2010 and 2012 lame duck sessions, a total of 32 judicial nominees were confirmed. Of course, during those sessions, Senate Republicans were not preparing to take the reins of power.

There is also, however, some precedent for the current situation in recent history. In the 2002 lame duck session, Democrats controlled the Senate. In a spirit of bipartisanship, even though they were the opposition party, they nonetheless confirmed 20 of President Bush’s judicial nominees. Let’s hope Republicans today put aside politics and get to work on the nominees waiting for a vote so that each can receive an “up” or “down” vote.

Confusing and worrisome signals from Senator Burr 

Frustratingly, the situation with respect to North Carolina’s two nominees remains muddled in a way that appears to be sadly typical of the rest of the country. On the one hand, President Obama’s recent nomination of Triad lawyer and former state court judge Loretta Copeland Biggs seems to be on the track to swift approval. Biggs, who would be only the third African–American to ever serve as a federal district court judge in North Carolina, looks certain to fill the seat of Judge James Beaty of the state’s Middle District (the second African-American to serve) who retired to “senior status” earlier this year.

At her confirmation hearing in the Senate Judiciary Committee just before the election, Biggs received a big “thumbs up” from both Senator Kay Hagan and Senator Richard Burr. While welcome and encouraging, Burr’s positive, “trains-on-time” stance on the Biggs nomination was enough to leave an informed observer feeling a sense of profound confusion given that it comes on the heels of an almost 18-month-long blockade of another Obama nominee – federal prosecutor Jennifer May-Parker, whom the President tabbed for a long-vacant slot in the state’s Eastern District in June of 2013.

As reported by NC Policy Watch Courts, Law and Democracy Reporter Sharon McCloskey on several occasions since her nomination, not only has Burr repeatedly blocked May-Parker’s consideration by the Senate, he has refused to say why or even publicly address the issue. To make matters more maddening, Burr publicly endorsed May-Parker for the job in a letter way back at the outset of the Obama presidency – four years before she was nominated.

Sadly, Burr’s bizarrely contradictory stances seem designed to accomplish one basic goal that is familiar to anyone who has watched congressional GOP behavior since Obama took office – to obstruct, frustrate his administration and just generally cause mischief so as to avoid Tea Party disapproval. One day, it’s grown up governance, the next day it’s high school childishness and tantrum displays.

Going forward

In the short run of the lame duck session, there is much that Democrats – who will still control the Senate for a few more weeks – can do. Absent a full court press of GOP obstruction on every issue, they have the power to push most of Obama’s nominations through. Indeed, if Senator Leahy, the outgoing chair of the Judiciary Committee, would do away with the arcane “blue slip” rule that has facilitated Burr’s one-man filibuster of May-Parker, such progress could be truly significant.

And make no mistake, this would be a preferable outcome to blockage and stalemate. Instead of judges who side with corporate interests and whittle away at laws that protect our rights, the United States needs judges who support equality, protect access to health care, and are committed to safeguarding the Constitution. Swift approval of Obama’s numerous pending nominees would make a huge difference in this regard.

Moreover, if the GOP really were to go all Tea Party on the country in 2015, it is also important to work to confirm judges before the end of the year because such a new Senate could be expected to obstruct judicial nominees with the hope that a Republican president will be elected in 2016. Indeed, many expect that the GOP leadership will change the rules to slow judicial confirmations to a crawl and reinstitute obstruction by filibuster.

That said, it would be much better for American government and for the country generally if the Republicans opted to send a positive signal by offering an olive branch during the lame duck session (and better still if they kept it up in 2015).

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