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A project tracking federal judicial nominations and courts.


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Trump’s Judges: A Second Front in the Environmental Rollback (Yale Environment 360, 08/28/17)
Elizabeth Shogren: What most unnerves Ayres and other veteran environmental lawyers and legal experts is the unprecedented opportunity President Trump has to fill the federal judiciary with anti-regulatory, pro-business appointees.... Allison Eid, Trump’s nominee for the 10th Circuit Court of Appeals in Denver, wrote a decision in 2012 for the Colorado Supreme Court that overturned a lower court’s ruling and rejected a community group’s request for a hearing about oil and gas drilling permits near a site where a nuclear bomb was exploded deep underground in 1969. Eid also dissented when the Colorado Supreme Court allowed eminent domain of a corporation’s land to be used for public parks and recreation, yet in a dissent in a separate case she ruled that a pipeline company should be able to use eminent domain for a petroleum pipeline.

White House Lawyer Is Top Pick For Open Court Seat, And Controversy Could Follow (National Public Radio, 07/28/17)
Carrie Johnson: it's Katsas' work for President Trump this year that could overtake all that other experience in any Senate hearing.... The administration has had a rough time in the legal arena.... Then, there's the stormy relationship between the White House and the Justice Department, a role typically managed by the White House Counsel's Office. ... Justice Department veterans from previous administrations have blown the whistle over what they said are violations of long-standing policy that's supposed to protect law enforcement independence by barring most people in the White House from inquiring about ongoing investigations.... In a confirmation hearing for a lifetime-tenured judgeship, especially on the D.C. Circuit which is known as a "feeder" court for the U.S. Supreme Court, all of those issues could be fair game, veterans of the judicial nominations process said. Katsas could be asked about his involvement, knowledge and advice on a host of controversies

Hallelujah News, Judiciary Department (Daily Kos, 07/11/17)
Meteor Blades: U.S. Circuit Judge Janice Rogers Brown of the United States Court of Appeals for the District of Columbia Circuit will retire from the bench at the end of August. The libertarian-leaning Brown appointed by President George W. Bush in 2005 has a record of challenging 80-plus years of U.S. economic policy, having called the New Deal as a win for “socialist revolution.” Not the only federal judge appointed in the 21st Century to hold such views, of course, but Brown has been one of the most vocal in her judicial opinions, injecting a tone of disdain in her written judgments.

THE LONG GAME: Court Stops Trump & Pruitt From Trashing the Planet—for Now: The latest D.C. Circuit Court decision to halt environmental protection rollbacks shows why Trump’s extreme-right judicial nominees are dangerous in the long run.  (Daily Beast, 07/06/17)
Jay Michaelson: the important role that the courts have played in slowing Trump’s actions on immigration, security, and environmental regulations points to the importance of the federal judiciary generally—and to the extreme candidates that Trump has nominated so far. Trump has continued to draw heavily from the wishlist prepared by the Heritage Foundation, tacking hard right from the judicial mainstream.... Trump has gone beyond previously accepted limits, nominating to one appellate court John Bush, a birther who used a pseudonym to blog wingnut-like rants about President Obama, and to another Damien Schiff, who called Justice Anthony Kennedy “a judicial prostitute.” (Schiff has apologized.) And because of unprecedented obstructionism in the previous congress, Trump now faces a record-high number of vacancies and expected vacancies in the federal judiciary: 38 percent over the next four years. … voters should care. As we’ve seen in the last six months, the independent judiciary may be democracy’s last line of defense.

Susan Collins: The Senate moderate who wasn’t (Seacoastonline [Southern ME & NH], 04/16/17)
Column By Douglas Rooks: She saw it differently for Gorsuch; a single nomination was worth abandoning Senate rules. She cited as precedent the 2013 decision by Democrats to end the filibuster for presidential nominees except the Supreme Court, though the situations weren’t comparable. In 2013, Senate Republicans, stunned by Obama’s re-election, filibustered all of his nominees for important posts. ... It’s hard to see what else Democratic Leader Harry Reid could have done, given this wholesale rejectionism. ... She said Judge Gorsuch was mainstream, yet his decisions reflexively favor corporations over employees, even in the case of the trucker fired for driving his big rig out of a snowstorm because he feared freezing, or the Hobby Lobby case, where one corporate CEO’s sensibilities overrode the health care needs of 32,000 employees.

Democrats didn’t gratuitously forfeit the filibuster (Pittsburgh Post-Gazette [PA], 04/13/17)
Harold Bloomfield, Letter to the Editor: It is laughable that Mr. Krauthammer was able to write about this subject without mentioning the Republicans’ unprecedented refusal to give Merrick Garland’s nomination a hearing and a vote. Mr. Krauthammer further amuses by stating that President Barack Obama tried to “pack three liberal judges onto the D.C. Circuit Court of Appeals.” Mr. Obama apparently rankled Republicans by fulfilling his constitutional responsibility to nominate judges to fill existing vacancies. Mr. Krauthammer also complains about liberal judges and their freewheeling, freestyle constitutional interpretation, conveniently forgetting about the Roberts court’s precedent-shattering decisions

[Editorial] McConnell reaps harvest of division (Lexington Herald-Leader [KY], 04/05/17)
"During his years as minority leader, McConnell wielded Senate rules, such as the 60-vote requirement, like no one ever before. McConnell’s goal: block President Barack Obama’s appointments and legislative agenda. Last year, as majority leader, McConnell refused to give Obama’s Supreme Court nominee Merrick Garland so much as a hearing on the invented grounds that the appointment rightfully belonged to the next president. Interestingly, McConnell refused during a Sunday appearance on “Meet the Press” to support formalizing his invented rule .... he has only his past actions to blame for Democrats’ stubbornness. ... Democrats, logically enough, think that easing Gorsuch’s confirmation would reward McConnell’s intransigence on the Obama nominee.... McConnell was so effective at blocking Obama’s nominees that President Donald Trump inherited almost twice as many judicial vacancies (an estimated 103) as Obama did (53). Eroding the 60-vote requirement, also known as the filibuster, does alter the nature of the Senate in ways that McConnell once decried. The Senate would become less consenus-oriented and deliberative .... The objections to Gorsuch are rooted in substance not politics alone. The Coloradan came off less qualified in person than on paper. His record reflects an intemperate zeal to dismantle protections for workers, consumers, clean water and air.... McConnell, who perfected the obstructionist model, is reaping what he sowed."

Chuck Grassley Gives a History Un-Lesson on Judges (People For blog, 04/05/17)
Paul Gordon: During the eight years President Clinton served in office, more than 60 of his circuit and district court nominees became victims of the Republicans’ “pocket filibuster.” ... George W. Bush took office, at which point Republicans spent eight years demanding that all judicial nominees receive floor votes. But the minute it was a Democratic president again, the GOP went back into obstruction mode. ... Republicans exercised every procedural trick in the book to slow down the confirmation process for all judicial nominees, regardless of level (circuit or district), regardless of support from home state Republicans, and even regardless of a complete lack of opposition at all.... Republicans escalated their war even further when Grassley himself announced that he and his party would refuse to allow President Obama to fill any of the three vacancies on the 11-member D.C. Circuit. ... As Rep. Adam Schiff of California said: “When McConnell deprived President Obama of a vote on Garland, it was a nuclear option. The rest is fallout.”... Less than three months into the Trump administration, with only one nominee, Republicans are threatening to change the rules for Supreme Court nominees.

How President Trump will shape the federal courts (Volokh Conspiracy, 01/20/17)
Jonathan H. Adler: Trump’s influence on the courts could be magnified if Congress decides to expand the size of the federal judiciary. There are some courts with tremendous backlogs that could use more judges, and others (such as the D.C. Circuit) that Republicans would like to “pack” (or, if your prefer, “unpack”) to offset the effects of Obama’s appointments and Sen. Harry Reid’s decision to invoke the nuclear option to facilitate nominations.... I think judicial seats should be added to those courts with a genuine need, but judicial seats should not be created simply for the purpose of altering any given court’s balance. In other words, I see no reason to add seats to the D.C. Circuit. In addition, I would stagger the creation of these seats, spreading them out over several years — e.g. X in year one, Y in year two, etc. — so that such legislation does not create a partisan windfall.)

How Barack Obama Transformed The Nation’s Courts: He filled two SCOTUS seats and made the judiciary more diverse than ever. But the GOP stopped him from doing more. (Huffington Post, 01/12/17)
Jennifer Bendery: Obama will leave office with 329 of his judicial nominees confirmed to lifetime posts on federal courts. That includes two U.S. Supreme Court justices and four judges on the D.C. Circuit Court of Appeals, the two most powerful courts in the nation. Because of Obama, Democratic appointees now have a 7-4 advantage on the D.C. panel, and those judges will play a major role in deciding cases during the Trump administration related to environmental regulations, health care, national security, consumer protections and challenges to executive orders. Obama also tilted the partisan makeup of circuit courts. Nine of the country’s 13 appeals courts now have majority Democratic appointees, compared with just one when he took office in 2009. There is a caveat to his judicial success, however: When Republicans regained the Senate majority two years ago, they ground judicial confirmations to a halt. That has left 86 district court vacancies and 17 circuit court vacancies for President-elect Donald Trump to fill. That’s a huge number of court seats to fall victim to partisan politics. For some context: Obama inherited 59 district and circuit court vacancies when he became president. Trump is inheriting 103.

Did Obama win the judicial wars? (Politico, 08/08/16)
Michael Grunwald: "Sheldon Goldman, an academic who crunched historical data to create an Index of Obstruction and Delay, found that the index reached record highs under Obama even before the GOP took control of the Senate in 2015 and slowed the flow of confirmations to a trickle. While Obama has gotten two more judges confirmed than Bush did in his eight years—Clinton and Ronald Reagan both got about 50 more—judicial vacancies have more than doubled in the Obama era after getting cut in half during the Bush era. There are now 29 understaffed courts designated “judicial emergencies,” up from 12 when Obama took office. And those numbers don’t reflect how Senate Republicans turned even uncontroversial lower-court nominations into legislative ordeals, converting the filibuster, previously extremely rare, into a routine tool of delay, often for judges who were eventually confirmed unanimously."

Free Pa's federal judicial nominees from Senate limbo: Editorial (PennLive [PA], 04/15/16)
"The Senate's Republican majority has made an absolute fetish of blocking President Barack Obama's judicial appointments – an obstructionist posture that has burdened benches across the nation, particularly in Pennsylvania.... Even before they held the majority, Senate Republicans routinely blocked movement on the president's nominees, filibustering mercilessly and delaying, sometimes for more than a year, even those judges who were eventually approved all but unanimously. Laughably, when the president offered nominations to fill three vacancies on the D.C. Circuit Court of Appeals in June 2013, GOP leaders accused him of trying to "pack the court." ... some 50 judicial nominees are currently hanging fire .... the Senate has approved just 17 judicial nominations since Republicans took control in 2015. That's fewer than half the 40-plus circuit and district court nominees approved by the Democratic-controlled Senate during a similar period during George W. Bush's presidency.... 34 judicial districts face emergency shortages .... Also nominated by Obama ... Rebecca Ross Haywood for the U.S. Court of Appeals for the Third Circuit .... Toomey is urging fellow Republican Sen. Charles Grassley of Idaho, Judiciary Committee chairman, to advance Colville and Younge out of committee and on to a floor vote. His advocacy is commendable, but that Toomey continues to simultaneously (and heartily) block the president's Supreme Court nominee is an irony that is hard to ignore."

Commentary: Senate stalling on federal judge nominees needlessly harms justice system Ensuring that the courts function should not stop just because we've entered a presidential election year. (Portland Press Herald [ME] , 01/27/16)
"The federal courts are a critical component of a functioning government. That’s why it’s distressing that as of today there are 71 vacant judgeships across the country, and that 31 of those vacancies have resulted in caseloads for other judges so high as to constitute an emergency. Given that access to justice is a fundamental American value, you might expect the U.S. Senate to act swiftly to fill those positions, ensuring that their constituents can have their day in court. Unfortunately, that is not the case. Currently, 12 nominees to the federal courts await an up-or-down vote from the full Senate after having been reviewed and recommended for confirmation by the Senate Judiciary Committee....Another 20 nominees have yet to be reported out by the committee, and only five of those well-qualified candidates have had a hearing. Mary Flores was nominated to the Southern District Court of Florida nearly one year ago; why hasn’t the Senate Judiciary Committee found the time to hold a hearing on her suitability to serve in this important role? The seat she would fill has sat vacant for over 600 days, leading to a judicial emergency"

Editorial: The Right Leader for New York’s Courts (New York Times, 11/09/15)
"The job of running New York State’s highest court is open once again, and Gov. Andrew Cuomo has an important decision to make in filling it.... Last month, the Commission on Judicial Nomination, a bipartisan group led by Judge Lippman’s predecessor, Judith Kaye, released a list of seven nominees to succeed him. Among these are ... Caitlin Halligan, the state’s solicitor general from 2001 to 2007, and now a partner at Gibson, Dunn & Crutcher.... While the list represents a cross section of highly capable and well-respected lawyers with diverse backgrounds, Ms. Halligan and Ms. Prudenti stand out. Ms. Halligan argued regularly before the court as state solicitor general and is widely considered a superb litigator. In 2010, President Obama nominated her to serve on the federal appeals court in Washington, D.C., but Senate Republicans blocked her from receiving a full vote for more than two years. Their opposition was based in large part on her efforts to hold gun manufacturers and retailers accountable for crimes committed with illegal guns in New York."

Editorial: Judged worthy in weighing the seven contenders to be the new state chief judge (New York Daily News, 10/16/15)
"After far too long, a special screening panel for appointments to state’s highest court has put merit back into the merit selection of judges.... to replace retiring Chief Judge Jonathan Lippman the commission has sent Cuomo the names of seven lawyers whose credentials outmatch the collective heft of past batches of nominees. ... Caitlin Halligan, the onetime New York solicitor general and general counsel for the Manhattan district attorney, was also nominated by President Obama for a lifetime appointment to the U.S. Court of Appeals for the District of Columbia Circuit, the country’s second most important Federal Court and a springboard for many U.S. Supreme Court justices. Her appointment was filibustered by Senate Republicans.... The unprecedented quality of the candidates suggests that, perhaps, the panel recognized that it would have lost all credibility by advancing questionable nominees."

HOW ONE SENATOR FROM ARKANSAS IS OBSTRUCTING “THE PEOPLE’S COURT” (Text & History, 07/27/15)
By Judith E. Schaeffer: "Senator Tom Cotton (R), the junior Senator from Arkansas, is obstructing the proper functioning of the United States Court of Federal Claims (“CFC”), holding up consideration of President Obama’s nominees to fill five judicial vacancies on a court that is supposed to have 16 active judges. According to Senator Cotton, the CFC does not need those five judges, a claim disputed by the Chief Judge of that very court, who is certainly in a better position to know. ... All of the nominees were approved in February without opposition by the Senate Judiciary Committee, and sent on to the Senate floor for confirmation votes. Nonetheless, and despite the fact that nearly one-third of the judicial seats on the CFC are vacant, not one of these nominees has received a yes or no confirmation vote. ... Like the D.C. Circuit, the Court of Federal Claims is vitally important to those who care about protecting the environment and preserving environmental safeguards. The CFC has exclusive jurisdiction over most “takings” claims against environmental and other protections, .... conservatives have worked hard to put young, ideological nominees on the court, like Victor Wolski, who told the National Journal in 1999 that “every single job I've taken since college has been ideologically oriented, trying to further my principles,” which he described as a “libertarian” belief in “property rights” and “limited government.” It’s no wonder that a conservative Senator is now trying to preserve the status quo on that court."

D.C. Circuit Caseload Rises From Spike in Agency Challenges (National Law Journal, 06/30/15)
"The caseload of the U.S. Court of Appeals for the D.C. Circuit rose sharply over the past year from new administrative challenges to environmental regulations and labor rulings, Chief Judge Merrick Garland said at the circuit’s judicial conference last week. The increase in new cases, which Garland estimated at nearly 30 percent, comes on the heels of criticism that the circuit’s caseload statistics did not justify filling judicial vacancies. Some Senate Republicans in 2013 opposed to three nominations to the D.C. Circuit—Patricia Millett, Cornelia Pillard and Robert Wilkins—cited declines in the court’s caseload. Between March 2014 and March 2015, the D.C. Circuit saw a more than 20 percent increase in new appeals filed, from 941 to 1,138, according to the most recent publicly available case data. The biggest jump was in new administrative cases, which nearly doubled....The appeals court has a full bench for the first time in more than 22 years, Garland said. In November 2013, the U.S. Senate invoked the so-called “nuclear option" to allow Democrats to push through President Barack Obama’s stalled D.C. Circuit nominees."

Robert Bork Wouldn't Have Changed History (Bloomberg News, 06/29/15)
Jonathan Bernstein column: "As a compromise candidate, Kennedy would preserve the president’s ability to influence the court far into the future, yet also reflect the Senate’s preferences. (Senate liberals and moderates wouldn't have dreamed of blockading just any Reagan nominee, as Republicans have done for some appeals-court vacancies under Obama.)"

Reid and the Federal Judiciary (Washington Monthly, 03/27/15)
Ed Kilgore: "That Reid, a big-time Senate traditionalist, let himself be convinced this harvest of judges was worth the trouble and controversy of changing the rules on filibusters was a sign he understood his particular challenge and met it."

How Harry Reid Changed the Federal Courts (New Yorker, 03/27/15)
JEFFREY TOOBIN: "The Senate had confirmed only five Obama appointees to the federal appeals court in the election year of 2012, but Reid moved to double the pace in 2013. Republicans responded by filibustering almost every judicial appointment to the appeals court and slow-walking appointments to the district court, which had been routine and uncontroversial under earlier Presidents. ... With Reid’s blessing, Senate Democrats changed the rules so that only a majority would be required to move lower-court judgeships to a vote. Freed from the threat of filibusters, Reid pushed through thirteen appeals-court judges in 2013 and 2014, a group of exceptional quality. They included Patricia Millett, Nina Pillard, and Robert Wilkins on the D.C. Circuit. For the first time in decades, that court now has a majority of Democratic appointees. Other confirmations included such luminaries as Pamela Harris (a noted professor and advocate) on the Fourth Circuit, ... and David Barron (a Harvard law professor and Obama Administration lawyer) on the First. ... At the same time, Reid pushed through more than a hundred district-court judges in his last two years as majority leader."

Judicial Selection in Congress’ Lame Duck Session (Indiana Law Journal , 02/20/15)
Carl Tobias: This Article first scrutinizes the Obama Administration confirmation and nomination processes. It then critically explores selection and concludes that Republican obstruction instigated the most open positions the longest time. Because this deficiency undermines swift, economical, and fair case resolution, the Article suggests ideas to promptly decrease the remaining unoccupied judgeships after the session commences.

Right enraged by filibuster tactics they once embraced (Maddow Blog {MSNBC], 02/20/15)
Steve Benen: "By the fall of 2013, the Senate Republicans’ filibuster abuses had reached a level unseen in American history. The GOP minority declared that it would simply refuse to consider any judicial nominee, no matter how qualified, for the D.C. Circuit Court of Appeals – and they would maintain this position until 2017 at the earliest. Left with no choice, Senate Democrats executed the so-called “nuclear option,” restoring the chamber’s traditional rules that allowed the Senate majority to confirm federal judges."

Jonathan Bernstein: Lift the blockade on confirming US judges (McClatchy newspapers, 01/29/15)
"Democrats weren't objecting to ideology-based filibusters against specific nominees, but to the across-the-board blockades preventing the president from filling any judicial vacancy at all. The filibuster that pushed Democrats over the edge was over three seats on the District of Columbia Circuit Appeals Court."

Rand Paul's Brand of Judicial Activism (Bloomberg News, 01/26/15)
Cass R. Sunstein: "For many decades, the Supreme Court’s 1905 decision in Lochner v. New York has ranked among the most universally despised rulings in the history of American law....Within the federal courts, Paul’s position is closely aligned with that of Judge Janice Rogers Brown of the powerful U.S. Court of Appeals for the District of Columbia Circuit. Brown has contended that the New Deal “inoculated the federal Constitution with a kind of underground collectivist mentality,” which transformed the Constitution into “a significantly different document.” In a recent opinion, she complained that without an active judiciary, “property is at the mercy of pillagers.” Judge Brown has no enthusiasm for judicial restraint. Along with like-minded colleagues, she has played a leading role in a series of aggressive lower-court decisions, striking down restrictions on commercial advertising, invalidating financial regulations and otherwise protecting economic liberty. There’s good reason to resist this trend, which would empower federal judges to exercise far too much authority over the American people."

Republican Claims About Judicial Nominations Combine Gross Inaccuracies With Banal Observations (Huffington Post, 11/07/14)
Nan Aron, President, Alliance for Justice: "Hatch and Gray persist in their bizarre view that it was improper for President Obama to fill longstanding vacancies on the D.C. Circuit, and they complain that rules reform has led to "controversial judges." These claims ignore the fact that President George W. Bush filled exactly the same seats on the D.C. Circuit when they became vacant during his administration, and his appointees included controversial judges Janice Rogers Brown (confirmed by a vote of 56 to 43) and Brett Kavanaugh (confirmed by a 57 to 36 vote)....Of the 62 federal judges confirmed in 2014 so far, 45 -- or 73 percent -- were confirmed with 90 or more votes in favor; 56 nominees -- or 90 percent -- were confirmed with bipartisan support....Senate Republicans have relentlessly obstructed President Obama's judicial nominees"

Radical judge kneecaps clean electricity under cover of boringness (Grist, 10/07/14)
David Roberts: D.C. Circuit Judge Janice Rogers "Brown is a far-right ideologue.... her ruling in the FERC case is just what you’d expect. She is implacably hostile to federal authority, eager to defend federalism and states’ rights, and has clumsily imposed that ideology on an ambiguous regulatory issue. It’s called “judicial activism” and it’s something conservatives claim to oppose, at least when liberal judges do it. Remarkably, none of the stories and blog posts I read about this case — not one — mentioned Brown’s record of reactionary radicalism. ... Meanwhile, it would be great if Obama, liberals, and everyone else concerned with the integrity of social democracy got a little more alarmed about the rightward trajectory of the U.S. judiciary. This is something the conservative movement has been focusing on for decades, and it’s paying grim dividends. Climate hawks should be alarmed too: “This month a three-judge panel of the D.C. Circuit Court of Appeals agreed to hear a challenge to the Environmental Protection Agency’s new climate rules under the Clean Air Act.”

‘Obamacare’ Challengers Lose Again (New Bedford Standard Times [MA] , 09/04/14)
JESSE WEGMAN, Editorial Page Editor's Blog: "On Thursday morning, as almost everyone predicted it would, the federal appeals court in Washington, D.C., voted to toss out a three-judge panel’s ruling upholding the latest attempt to kill “Obamacare.” ...a key reason for the current makeup of the D.C. appeals court is the Senate’s reform of the filibuster process last fall, which was triggered by Republicans’ refusal to allow a vote on any of President Obama’s three nominees to that court. After the reform, all three nominees were confirmed. If anyone was wondering what the hue and cry over filibuster reform was really about in practice, the Halbig case is Exhibit A."

Opinion The new battle over Blair Mountain -- with lawyers instead of guns (Los Angeles Times, 09/01/14)
Scott Martelle: "Last week in a 2-1 vote, the Court of Appeals for the District of Columbia Circuit overturned the judge’s dismissal, deciding that the plaintiffs did have standing, in part because removing the surface of Blair Mountain would create a landscape where widely appreciated beauty now exists. In dissent, the lone “no” vote questioned whether anyone has a legal right to enjoy the view of another’s property, despite a litany of prior cases the majority cited."

Catch of the Day: Redefining Obstruction (Bloomberg News, 08/25/14)
Jonathan Bernstein column: "even after the "nuclear option" reform in the Senate last fall, President Barack Obama's federal court nominees still wait longer for confirmation than their predecessors under previous presidents....I should stress that these are in many cases delays of non-controversial nominees.... Unfortunately, Republicans simply haven’t abided by longstanding Senate norms. After Obama's election, they suddenly insisted that every nomination required 60 votes -- an unprecedented hurdle. They blockaded multiple nominations to the DC Circuit Court. They have, before and after filibuster reform, used Senate rules to delay even nominations that they have intended ultimately to support. Since reform, they have imposed the maximum delay on every single judicial nominee.... if Republicans win a Senate majority in November, they may simply shut down all nominations for two full years. That would be absolutely outrageous."

DC Circuit Decision Isn't Just About Obamacare Subsidies: It Also Kills the Employer Mandate (Huffington Post, 07/28/14)
Terry Connelly: "What these two Republican jurists on the DC Circuit invented was a version of the ACA that even their own political party never considered to be reality: namely, a statute that contains its own self-destruct poison pill that would invalidate the very provisions the GOP most detested:"