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Published: Tuesday, 6/4/2013

Senate showdown

A fight over Obama’s judicial nominees and other appointees is about the politics of minority rule in the Senate

What's wrong in Washington is not amorphous “gridlock.” Even less is it a failure of President Obama to lead. What is wrong is the ability of a minority in the Senate to thwart the majority.

That includes the ability of the Republican minority to prevent enforcement of laws on the books. By refusing to confirm a head of the Consumer Financial Protection Bureau, the minority prevents full enforcement of the Dodd-Frank law’s financial reforms. The Brookings Institution’s leading scholar on Congress, Thomas Mann, calls this tactic “nullification.”

The GOP congressional agenda is unchanged by the President’s re-election. It is the same agenda as in his first term — thwart him on every front and oppose all legislation except tax cuts. The GOP maintains a majority in the House.

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In the Senate, Republicans have only 45 of 100 votes. But with their abuse of the filibuster — or just the threat of it — Republicans were able to defeat common-sense gun-control legislation that 90 percent of Americans favor.

They now threaten to defeat bipartisan immigration reform. They have held up other important presidential appointments, such as a new secretary of Labor. For a time, the Senate even held up confirmation of the secretary of Defense, a former Republican senator.

It takes 60 votes to break the filibuster; Democrats generally have 55. The GOP’s abuse of minority rights has brought the legislative process to a halt. Congress is paralyzed. And that is neither what the Founding Fathers intended nor what Americans desire.

One of the worst areas in which the Senate has shut itself down is judicial nominations. Many nominees have not been confirmed a year or more after the President sent their names to the Senate. Other nominations never got made, because Republican senators refused to send recommendations to Mr. Obama — a traditional Senate function.

The motive is simple: Republicans do not want more liberal judges on the federal bench. But instead of insisting on moderation, as they claim, they are simply refusing to fill vacancies.

Democrats used the filibuster when Republicans held the White House. But what is happening now is an unprecedented power grab. The filibuster threat is used to block not an occasional nomination, but most nominations.

So Mr. Obama is picking a fight. He is nominating three judges to the U.S. Court of Appeals for the District of Columbia, which is second in importance among federal courts only to the Supreme Court.

If the Senate sits on these nominations, Majority Leader Harry Reid (D., Nev.) vows to move to abolish the filibuster for judicial and presidential appointments. Republican Senate leaders call this the “nuclear option,” but it may prove a necessary one, sooner rather than later.

This president, like any other, deserves to staff his administration. Courts cannot do justice with empty benches.



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