Elizabeth Warren

Republican Filibusters of Judicial Nominees- Nov. 13, 2013

Elizabeth Warren
November 13, 2013— Washington, D.C.
Senate Floor
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Yesterday, the Republicans blocked an up-or-down vote on the nomination of Nina Pillard to the D.C. Circuit Court of Appeals. This filibuster comes just one week after Republicans filibustered the nomination of Patricia Millett to the D.C. Circuit, and less than a year after the Republicans filibustered Caitlin Halligan, who eventually just gave up and withdrew her nomination.

Republicans now hold the dubious distinction of having filibustered all three women that President Obama nominated to D.C. Circuit. Now, collectively, these women have diverse experiences in private practice, in government, and in public interest law. Between them, they have argued an amazing 45 cases before the Supreme Court, and have participated in many more. All three have the support of a majority of Senators. So why have they been filibustered?

The reason is simple. They are caught in a fight over the future of our courts – a fight over whether the courts will be a neutral forum that decides every dispute fairly, or whether the courts will be stacked in favor of the wealthy and the powerful.

Every day in Congress we deal with the influence of powerful groups and their armies of lobbyists. But in our democracy, when we write our laws, sometimes we can push back on that power.

In our democracy, we have tools that can be used in the legislative process – tools like open debate, and public opinion, and political accountability – tools that can help the people win these fights.

But the story doesn’t end when Congress passes a law. Powerful interests don’t just give up – they shift their fight to the courts – because they know that if they can weaken or overturn a law in court, they turn defeat into victory. And if they can rig the courts by putting enough sympathetic judges in lifetime positions, a friendly judicial system will give them the chance to undermine any law they don’t like.

The D.C. Circuit is a particular target because that court has the power to overturn agency regulations. Nine of the 14 judges on the D.C. Circuit who currently hear cases were appointed by Republican Presidents. The President with the most appointees on that court right now is Ronald Reagan. And this lopsided court has been busy – striking down environmental regulations that stop companies from spewing mercury into the air we breathe - striking down investor protections that hold corporate boards accountable – striking down a requirement for employers to provide access to birth control under Obamacare.

Each of these regulations exists because Congress has passed laws telling the agencies to write them. Now, it’s true that sometimes an agency may get it wrong. But these days, the D.C. Circuit seems to be finding more and more ways to help bail out the businesses that never wanted to be regulated in the first place.

Republicans may not like Wall Street Reform. They may not like Obamacare. But Congress passed those laws. President Obama signed those laws. President Obama ran for reelection on those laws, while his opponent pledged to repeal them—and his opponent lost by nearly five million votes. It is not up to judges to overturn those laws or their associated regulations just because they don’t fit the judges’ policy preferences.

I understand that Republicans may prefer to keep the D.C. Circuit exactly as it is. But Article II Section 2 of the Constitution says the President of the United States nominates judges, with the advice and consent of the Senate. There’s no clause that says “…except when that President is a Democrat.” Democrats allowed President George W. Bush to put four very conservative judges on the D.C. Circuit. All four are all still serving, and one is now Chief Justice of the United States Supreme Court.

There are three vacancies in the DC Circuit Court of Appeals. The President of the United States has nominated judges to fill those vacancies. That’s his job. And it is the job of the Senate to confirm highly qualified, independent judges. That’s how our system works—that’s what the Constitution demands.

We need to call out these filibusters for what they are: naked attempts to nullify the results of the last Presidential election—to force us to govern as though President Obama hadn’t won the 2012 election.

Well, President Obama did win the 2012 election – by five million votes. And he has done what the Constitution requires him to do: nominated highly qualified people to fill open vacancies on the federal bench. If Republicans continue to filibuster these highly qualified nominees for no reason other than to nullify the President’s Constitutional authority, then senators not only have a right to change the filibuster rules – senators have a duty to change the filibuster rules. We cannot turn our backs on the Constitution.

We cannot abdicate our oath of office. We have a responsibility to protect and defend our democracy, and that includes protecting the neutrality of our courts - and preserving the Constitutional power of the President to nominate highly qualified people to court vacancies.

Speech from https://www.youtube.com/watch?v=GKXlsreAqVk.