At a time when hyper-partisanship and the inability to get anything done have raised public disgust with Congress to an alltime high, Sen. Mark Pryor (D-Ark.) is under attack-for taking a principled stand and reaching across the aisle to end gridlock. A group calling itself the Judicial Crisis Network is running ads attacking Pryor for refusing to filibuster President Barack Obama’s judicial nominees.
To understand the absurdity and the hypocrisy behind these attacks, it’s useful to turn back the clock to 2005. George W. Bush was president, and Republicans had a majority in the Senate. But a few of Bush’s judicial nominees were so extreme, so far out of the mainstream, that Democrats filibustered.
Supporters of Bush’s nominees organized something they then called the Judicial Confirmation Network to demand a yes-orno vote on every judicialnominee. Indeed, they said it was the Senate’s duty under the Constitution to give every nominee such a vote, in their words, “regardless of what party’s in power.”
They found an ally in Mark Pryor. Against the wishes of some in his own party, he negotiated a bipartisan agreement with 13 of his colleagues-forming the so-called Gang of 14. Under that agreement, the filibusters would end and all judicial nominees going forward would get a yes-or-no vote except under “extraordinary circumstances.”
And that’s what happened. One Bush nominee after another was confirmed. Not only did Mark Pryor insist on a vote, in many cases he voted to confirm those nominees.
Flash forward to 2013. Now there’s a Democratic president and a Democratic Senate. But Republicans effectively declared the Gang of 14 agreement null and void. They used the filibuster to block scores of nominees. They filibustered nominees for federal district court-the trial court in the federal system-something previously unheard-of.
They filibustered nominees who had received bipartisan support in the Senate Judiciary Committee-even nominees reported out of committee unanimously.
They filibustered nominees regardless of their qualifications, including those awarded the American Bar Association’s highest rating of “unanimously well-qualified.” Indeed, Republicans admit they would oppose any Obama nominee for the nation’s second most important court, the United States Court of Appeals for the D.C. Circuit.
In response to this unprecedented obstruction, Senate Democratschanged the Senate rules last month to eliminate the filibuster on judicial nominees (excluding those to the Supreme Court). There were many good reasons why they did.
But Mark Pryor did not join them. Instead, he’s taking the same bipartisan position now that he took when George W. Bush was president: Every judicial nominee deserves a vote except under extraordinary circumstances.
Mark Pryor voted against changing the rules, but once again voted to let the Senate consider D.C. Circuit nominee Patricia Ann Millett, a military spouse and woman of faith known for her extraordinary work ethic and dedication to service. In support of Ms. Millett’s nomination, which Republicans still oppose, U.S. Army Major General Carl H. McNair (Ret.) wrote that “her service to the Courtof Appeals … would be a credit to the Court and to her dedication to God and Country, while embracing the spirit and the letter of the law envisioned by our forefathers.” And what about the group that once called itself the Judicial Confirmation Network? They’ve been somewhat less consistent. Now that Barack Obama is president, it seems they’ve re-interpreted the Constitution. They no longer believe every judicial nominee deserves a yes-or-no vote “regardless of what party’s in power.” On the contrary, they’ve become the Guardians of Gridlock-supporting what amounts to a blockade of judicial nominations, and running ads blasting Mark Pryor for refusing to go along.
And, since it’s hard to oppose confirmations en masse and still call yourself the Judicial Confirmation Network, the Washington-based group has changed its name: it’s now the Judicial Crisis Network.
Mark Pryor, in contrast, is still Mark Pryor. If anything, in breaking party lines on filibuster reform despite the Republicans’ blatant abuse of that procedure, he is bipartisan to a fault.
Now, as he did before, Mark Pryor believes that our federal courts need judges, and that, absent extraordinary circumstances, every judicial nomination deserves a yes-or-no vote-regardless of what party’s in power.
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Harry Truman Moore is a former president of the Arkansas Bar Association and a member of the American Bar Association House of Delegates. His opinions are his own and do not reflect those of the American or Arkansas Bar Associations.
Editorial, Pages 15 on 12/16/2013