Source: U.S. Judicial Conference
The United States Senate is a curious institution. It's not democratic. It's not representative. And it's the ultimate millionaire's sandbox.
So in the U.S. constitutional scheme: The 38 million people living in California get two votes out of 100, the same as the 576,000 folks who are residents of Wyoming.
One person's vote is worth more if they live in a tiny state, but at least it's a vote. Because some four million American Indians and Alaska Natives -- citizens of tribal governments -- aren’t counted as a unique constituency. By land mass, Indian Country's 50-plus million acres are bigger than almost half the states. Even breaking that number up into population counts, Cherokee’s 819,000 people or Navajo's 350,000, is in the same ballpark as one of those small states.
But that’s the deal. And the Constitution is sacred script (roll the organ-heavy musical theme now). So get over it, right?
But the thing is the U.S. Senate, this undemocratic institution, is made worse by the filibuster. Especially now that the filibuster has become a routine, invoked on every nominee or every bill. Instead of fifty votes, a supermajority of 60 votes, was required to get anything done. That changed last week. Senate Majority Leader Harry Reid, D-Nevada, used another rule (one requiring just 50 votes) to overrule the filibuster on judicial and executive nominees. Only now that that procedure has been invoked, it’s only a matter of time before the filibuster is gone forever. (The filibuster is only a tradition, not a constitutional procedure. It’s only been used for about a century. And in the past decade it’s use has increased significantly.)
Let’s be clear: The super-majority has not been good for Indian Country. One of the reasons it took so long to pass the reauthorization of the Violence Against Women Act was that 60-vote hurdle. Or reach a final settlement on the Cobell lawsuit. Or we’ve been reading all about the complications with the Affordable Care Act. One of the key appointments, Donald Berwick, was never confirmed as the director of the Centers for Medicare and Medicaid, and took the job with a limited timeframe as a recess appointment.
A filibuster-free Senate could also make it easier for American Indians and Alaska Natives to get appointed as federal judges.
This is one of those areas where the under-representation is beyond acceptable.
A current judicial nominee, former Arizona U.S. Attorney Diane Humetewa, a Hopi, should have an easy confirmation, and this new rule means one less hurdle. If confirmed, she will be the only Native American as an Article III judge (representing the judicial branch of government). It’s a lifetime gig.
But over the past couple of decades the entire Senate confirmation process, not just the filibuster has been an obstacle. The National Congress of American Indians and the Native American Rights Fund have been working on an education project to “ensure that American Indians and Alaska Natives receive fair consideration for federal vacancies.” Right now there are 93 openings for judges.
When Arvo Mikkanen, who is Cheyenne and Kiowa, was appointed as a federal judge in Oklahoma in 2010, the state’s two senators, Tom Coburn and James Inhofe, went out of their way to keep him off the bench.
Mikkanen, writing in The Atlantic, asked Coburn, “what exactly do you think you know about me that disqualifies me for a spot on the bench? The implication of your quote last week -- “I know plenty. I have no comment” -- implies that you believe you have some non-public information that would cast a negative pall upon my nomination. So what is it? As a dedicated public servant, someone who has worked in the federal government longer than you have, I believe I am entitled to that answer; and then to be free of the dark insinuation your comment suggests.”
Not a word from Coburn. Nothing from Inhofe. And no hearing either. The nomination was eventually returned from the Senate to the White House without action. No filibuster. Not even a vote.
But the threat of a filibuster as well as the traditional deference to the state’s senators was enough to keep Mikkanen off the bench.
This is absurd. And it’s why the filibuster’s death should be celebrated.
Mark Trahant is the 20th
Atwood Chair at the University of Alaska Anchorage. He is a journalist,
speaker and Twitter poet and is a member of the Shoshone-Bannock
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