The Free Press, Mankato, MN

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December 28, 2013

GOP arguments on filibuster ignore history

I’m responding to Bob Jentges (Free Press, Dec. 8) and Patrick Dempsey (Free Press, Dec.14). Both decried Senate Democrats’ recent abolition of filibusters by the Senate’s minority party, for presidential nominations for executive-branch posts and judicial vacancies on federal district and appeals courts. (Filibusters for Supreme Court nominations, and on legislation, are still allowed).

I concur with Dempsey’s well-written brief history of the filibuster — but not with his conclusion, that the move represents a “Democrat[ic] power grab.” Likewise, I disagree with Jentges’ conclusion that Senate Democrats’ action represents “an example of hypocrisy and extreme partisanship.” These claims are at best questionable, considering historical and contemporary realities.

The Democratic move followed Republican filibusters against President Obama’s nominees for three vacancies on the 11-seat D.C. Circuit Court of Appeals. Justifying their filibusters, Republicans argued the D.C. Circuit is underworked — very questionable at best —, and that Obama’s filling these vacancies represents “court packing” — flat-out false.

The D.C. Circuit is the most visible and important federal appeals court. Positions on it are often launching pads for future Supreme Court nominees.(1) Furthermore, cases heard by the D.C. Circuit are not comparable with those heard by other appeals courts. D.C. Circuit cases are less often routine, and more complex and technical, often involving challenges to rules issued by federal administrative agencies. 

The D.C. Circuit hears cases involving over 130 different federal laws, and many of these cases are “sprawling and esoteric.”(2) Republicans’ claim that the D.C. Circuit is underworked relies only on data on numbers of cases — a seriously flawed metric, according to judicial experts. (3)

Next, Republicans contend Obama is trying to “pack” the D.C. Circuit. This claim is suggestive of Franklin D. Roosevelt’s 1937 “court packing” proposal, which, importantly, failed in Congress and was widely regarded as overreaching. 

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