Following up on Sen. Chuck Grassley’s (R-IA) threat to lash out at President Obama’s decision to make four necessary recess appointments by seeking revenge against Obama’s other nominees, Tea Party Sen. Mike Lee (R-UT) used a Judiciary Committee hearing yesterday to make a similar threat:

Given this President’s blatant and egregious disregard both for proper constitutional procedures and the Senate’s unquestioned role in such appointments, I find myself duty-bound to resist the consideration and approval of additional nominations until the President takes steps to remedy the situation. Regardless of the precise course I choose to pursue, the President certainly will not continue to enjoy my nearly complete cooperation, unless and until he rescinds his unconstitutional recess appointments.

Watch it:

At the outset, it’s important to note that there is no one in America who has less stature to claim that someone else shows “blatant and egregious disregard” for the Constitution than Mike Lee. Lee believes that federal child labor laws, FEMA, food stamps, the FDA, Medicaid, income assistance for the poor, and even Medicare and Social Security violate the Constitution. Taking Mike Lee’s advice on constitutional law is a bit like taking John “Bluto” Blutarsky’s advice on American military history.

Moreover, Lee’s suggestion that he has shown “nearly complete cooperation” in the past is laughably false. Lee openly admits that he filibustered Consumer Financial Protection Bureau Director Richard Cordray’s nomination because he wanted to sabotage that consumer protection agency, and he filibustered an exceptional nominee to the United States Court of Appeals for the DC Circuit because she had the audacity to do her job properly when she was Solicitor General of New York.

Fortunately, the Lee/Grassley plan for scorched earth retaliation does not seem to be resonating with much of the Senate GOP. Sen. Bob Corker (R-TN) recently said that he “would be surprised if you see mass reprisals,” and Sen. Ron Johnson (R-WI) — who has his own history of aggressive obstructionism — waived off Lee and Grassley’s angry tactic because he doesn’t think it will be a “particularly effective strategy.”

Nevertheless, the Senate’s broken rules enable just one senator to work a great deal of obstructionist mischief even if the other 99 vehemently disagree. Indeed, the fact that the current rules allow someone with the poor judgment of a Mike Lee to work such havoc shows why Obama was right to call for filibuster reform in his State of the Union speech this week. America can ill afford to have its ability to have a functioning government rest in the hands of the Senate’s most radical member.

Earlier today, a reliable source told ThinkProgress that President Obama will make at least one recess appointment soon. If this report proves accurate, Senate Republicans will inevitably complain that this action violates the Constitution — as they do pretty much every time President Obama does anything. They will be wrong.

Although recess appointments that occur while the Senate is at least pretending to conduct business every three days are rare, they are rare for a very simple reason. Few people in American history have done more to obstruct American governance than Senate Minority Leader Mitch McConnell (R-KY) and his fellow Senate Republicans. As such, it has rarely been necessary for a president to use his constitutionally granted authority to appoint officials during a very short recess.

There are no modern precedents for McConnell-style mass obstructionism, and there is no Supreme Court decision considering how long senators must be out of Washington before recess appointments are allowed. There was, however, a showdown during the Bush Administration over President Bush’s decision to recess appoint Judge William Pryor to the United States Court of Appeals for the Eleventh Circuit. In Evans v. Stephens, that court considered whether Pryor’s appointment was invalid because it occurred during a very short legislative break. This court is the highest legal authority ever to weigh in on the question of whether a break in the Senate’s calendar must last a certain number of days before a recess occurs, and it answered that question with an unambiguous “no”:

The Constitution, on its face, does not establish a minimum time that an authorized break in the Senate must last to give legal force to the President’s appointment power under the Recess Appointments Clause. And we do not set the limit today.

There are a number of well-established precedents demonstrating the president’s authority to make recess appointments during very brief recesses. In 1903, when the first session of the 58th Congress ended, President Theodore Roosevelt made over 160 recess appointments during a recess that lasted only a fraction of a day. Similarly, President Truman twice made recess appointments during recesses that lasted just a handful of days.

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Late last week, Sen. Ben Cardin (D-MD) introduced a bill to restore voting rights for citizens convicted of a felony after they complete their sentence.

Currently, four states — Florida, Iowa, Kentucky, and Virginia — permanently disenfranchise any resident convicted of a felony, even after he or she has been released from prison. Another seven states — Alabama, Arizona, Delaware, Mississippi, Nevada, Tennessee, and Wyoming — permanently disenfranchise people convicted of certain felonies.

If passed, the Democracy Restoration Act would restore voting rights to felons who have finished serving their sentence. Cardin explained the rationale for his bill in a press release Friday:

If we truly want to break the cycle of recidivism, we need to reintegrate former prisoners back into society. When prisoners are released, they are expected to obey the law, get a job, and pay taxes as they are rehabilitated and reintegrated into their community. With these responsibilities and obligations of citizenship should also come the rights of citizenship, including the right to vote.

Felon disenfranchisement is an issue that disproportionately affects African Americans. Of the more than two million Americans barred from voting despite finishing their felony sentence, the ACLU notes that 1.4 million – 70 percent – are black. This is acutely true in states like Virginia, Florida, Mississippi, and Alabama, where African Americans make up a substantial portion of the voting electorate, yet their power is diminished by state disenfranchisement laws.

Cardin’s bill, which has been referred to the Senate Judiciary Committee, is co-sponsored by Sens. Dick Durbin (D-IL) and Sheldon Whitehouse (D-RI).

On Saturday, the Senate closed off what was supposed to be its last day of business for the year (the Senate may need to reconvene, now that Speaker John Boehner has blown up a deal to extend tax cuts to middle class Americans). Yet the Senate closed out the year without confirming any of the 21 judicial nominees currently awaiting a vote on the Senate floor. Worse, according to the Senate’s chief obstructionist, these judicial nominees — along with more than two dozen other nominations — are intentionally being held hostage in order to prevent President Obama from recess appointing anyone to head the Consumer Financial Protection Bureau:

At the end of a rare Saturday session, the Senate’s last day of official business for the year, McConnell blocked an effort by Senate Majority Leader Harry Reid (D-Nev.) to confirm more than 50 executive and judicial branch nominations awaiting Senate action.

And he laid out a condition to releasing his objection: “confirmation from the administration that it will respect practice and precedent on recess appointments.”

McConnell added that he needed from the White House “assurances that have been routinely given at this point with regard to recess appointments.”

It’s unclear just what “practice or precedent” McConnell is referring to, but there is no one who has less standing to complain about unprecedented action than McConnell himself — the lead architect of the Senate GOP’s nihilistic campaign to make it impossible for President Obama to govern. Without an agency head in place, the CFPB cannot perform many of its core functions. Yet, Senate Republicans are filibustering CFPB director-in-waiting Richard Cordray in order to sabotage this newly created consumer protection agency. If McConnell really cares one bit about respecting “practice and precedent,” he can show it by ending this blockade and recognizing that the Senate minority does not have the legitimate authority to effectively repeal an entire agency.

McConnell could also show that he respects practice and precedent by returning the Senate to the way it operated before he became minority leader. Simply put, no one in recent American history has done more to abuse the filibuster than Mitch McConnell — as demonstrated by the massive spike in votes attempting to break filibusters once McConnell took over the minority caucus:

President Obama is not powerless, however, against McConnell’s effort to sabotage the CFPB. If McConnell will not end his blockade, Obama can invoke the Roosevelt Precedent, which allows him to appoint Cordray the second the Senate adjourns for the year.

Sens. Mitch McConnell (R-KY) and Chuck Grassley (R-IA) Discuss Their Understanding Of The Constitution

The Senate GOP’s decision to filibuster Halligan earned wide rebukes from Senate Republicans*, many of whom slammed this decision to filibuster a judicial nominee as unconstitutional:

• Lamar Alexander (R-TN): “I would never filibuster any President’s judicial nominee, period. I might vote against them, but I will always see they came to a vote.”
• Saxby Chambliss (R-GA) and Johnny Isakson (R-GA): “Every judge nominated by this president or any president deserves an up-or-down vote. It’s the responsibility of the Senate. The Constitution requires it.”
• Tom Coburn (R-OK): “If you look at the Constitution, it says the president is to nominate these people, and the Senate is to advise and consent. That means you got to have a vote if they come out of committee. And that happened for 200 years.”
• John Cornyn (R-TX): “We have a Democratic leader defeated, in part, as I said, because I believe he was identified with this obstructionist practice, this unconstitutional use of the filibuster to deny the president his judicial nominations.
• Mike Crapo (R-ID): “Until this Congress, not one of the President’s nominees has been successfully filibustered in the Senate of the United States because of the understanding of the fact that the Constitution gives the President the right to a vote.”
• Lindsey Graham (R-SC): “I think filibustering judges will destroy the judiciary over time. I think it’s unconstitutional”
• Chuck Grassley (R-IA): “It would be a real constitutional crisis if we up the confirmation of judges from 51 to 60, and that’s essentially what we’d be doing if the Democrats were going to filibuster.”
• Kay Bailey Hutchison (R-TX): “[T]he Constitution envisions a 51-vote majority for judgeships…. [Filibustering judges] amend[s] the Constitution without going through the proper processes…. We have a majority rule that is the tradition of the Senate with judges. It is the constitutional requirement.”
• Jon Kyl (R-AZ): “The President was elected fair and square. He has the right to submit judicial nominees and it is the Senate’s obligation under the Constitution to act on those nominees.”
• Mitch McConnell (R-KY): “The Constitution of the United States is at stake. Article II, Section 2 clearly provides that the President, and the President alone, nominates judges. The Senate is empowered to give advice and consent. But my Democratic colleagues want to change the rules. They want to reinterpret the Constitution to require a supermajority for confirmation.”
• Jeff Sessions (R- AL): “[The Constitution] says the Senate shall advise and consent on treaties by a two-thirds vote, and simply ‘shall advise and consent’ on nominations…. I think there is no doubt the Founders understood that to mean … confirmation of a judicial nomination requires only a simple majority vote.”
• Richard Shelby (R-AL): “Why not allow the President to do his job of selecting judicial nominees and let us do our job in confirming or denying them? Principles of fairness call for it and the Constitution requires it.”
• John Thune (SD): Filibustering judicial nominees “is contrary to our Constitution …. It was the Founders’ intention that the Senate dispose of them with a simple majority vote.”

*All quotes are taken from when George W. Bush was president. But, of course, that doesn’t matter because — in the words of Cornyn — “we need to treat all nominees exactly the same, regardless of whether they’re nominated by a Democrat or a Republican president.”**

**Cornyn’s statement was also made when George W. Bush was president.

DC Circuit Nominee Caitlan Halligan

The U.S. Senate Judiciary Committee has decided to slow down nomination hearings to give time to confirm pending nominees.

There are currently 23 nominees awaiting final votes in the Senate. Some, as in the case of Caitlin Halligan of Washington, D.C., have been waiting more than 400 days for a vote.

The committee on Nov. 16 met and decided to slow down the nomination hearings.

As a practical matter, this development is unlikely to slow the confirmations process more than its current snail’s pace. Because the Judiciary Committee operates under the radical assumptions that 1) a majority of the committee should get to actually approve a nominee; and 2) the minority should not be allowed to delay votes indefinitely, this Committee has actually managed to clear nominees at a reasonable pace.

The same cannot be said, however, for the Senate floor. There, of course, it takes 60 votes to get nearly anything done — but it really takes all 100 votes to get anything done quickly. That’s because the Senate’s broken rules allow dissenting senators to impose crippling delays on the body as a whole any time the majority tries to advance something that anyone at all objects to. As a result, President Obama’s nominees consistently clear the committee. And then wait. And wait. And wait.

So the Judiciary Committee’s decision to slow down hearings really just brings one of the Senate’s still functioning arms in line with it’s completely broken floor process. Nevertheless, it is an unfortunate development. By generating a backlog of nominees awaiting confirmation, the committee could at least hope to embarrass obstructionists into action. Now, they won’t even have that lever at their disposal anymore.