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Posted by on Nov 21, 2013 in Featured, Law, Politics | 4 comments

Democrats ready to use “nuclear option” to break Republicans ideological filibuster

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It has been threatened by both parties but never used but now it seems as if it’s going to happen. Faced with Republicans filibustering a-n-y appointments by President Barack Obama to the powerful D.C. Circuit Court because they don’t want him to appoint anymore and upset the existing conservative tenor, Majority Leader Harry Reid is reportedly ready to use the Democratic majority to Senate procedures so 51 votes instead a two-thirds majority could confirm a judge.

This comes on the heels of several developments: a)Reid thought he had a promise from GOPers and Senate Minority Leader Mitch McConnell that Republicans would not just use the filibuster on everything but use it (relatively) sparingly. b)Republicans, the conservative political entertainment media, and many new and old media conservative websites have suggested this is Obama trying to “pack” the courts when it doesn’t resemble FDR’s attempt to pack the court, but Obama filling vacancies just as every President before him as been allowed to do unless there are specific reasons why an opposition party doesn’t want a position filled c)what taken together is now a clear attempt to prevent Obama from leaving an imprint on the courts even though it has been a fundamental “given” of American politics that Presidents once elected can do so (see “b”) and d)an increase in toxic partisanship in Congress over the years coupled with voter suppression efforts in some Republican-dominated states which invariably wind up in court.

And now there’s this: there are now more trial court vacancies under Barack Obama than under George W. Bush or Bill Clinton.

The Huffington Post reports:

The Senate could go nuclear as soon as Thursday morning, according to three Democratic Senate sources close to the decision.

Majority Leader Harry Reid (D-Nev.) is prepared to change Senate filibuster rules by invoking the “nuclear option,” or by using arcane Senate procedures to change the rules with just 51 votes instead of the standard two-thirds majority vote. Under Reid’s new rules, only a simple majority would be required for all executive and judicial nominees other than those to the Supreme Court. Reid is meeting Thursday afternoon with progressive advocates of rules reform.

For years, as reformers in the Senate pushed for a rules change, they encountered resistance from veteran senators such as Judiciary Committee Chairman Pat Leahy (D-Vt.), Sen. Dianne Feinstein (D-Calif.) and even Reid himself, who all defended Senate tradition and also warned about turnabout once the GOP inevitably gained control of the chamber.

But the Senate’s inability to function, and the GOP’s steadfast opposition to appointing any new judges to the powerful D.C. Circuit Court, has worn down Democratic opposition to a rules change, leaving Sen. Carl Levin (D-Mich.) as the lone outspoken opponent.

Feinstein and Sen. Barbara Boxer (D-Calif.) both flipped positions on Tuesday.

It’s still not clear if Reid has the 51 votes to make the change, but it certainly looks close….Most recently, Republicans blocked all three of Obama’s nominees to the D.C. Circuit Court of Appeals, plus another one earlier this year.

On the other hand, when Bush was President and the GOP was in the majority, then Senate Majority Leader Bill Friske made the same threat, but the trigger was never pulled. Reid has now dangled the threat of the nuclear option when faced with what is now known to be calculated Republican obstructionism more often than a parent threatening a defiant teenager with taking away the car keys.

Doug Mataconis, for one, is skeptical:

For those of us who’ve been here before, though, it’s hard not to be just a bit cynical about all of this. As I noted above, we’ve been through this before during the Obama years, and we’ve went through it a big way during the Bush years when the Republicans who then controlled the Senate threatened to do exactly what Democrats are threatening to do now due to Democratic filibusters of Bush judicial nominees, including nominees to the D.C. Circuit Court of Appeals. In the end, each of those cases ended up getting resolved by some kind of deal that avoided the majority in question from going forward with the so-called “nuclear option.” Given that, the safe bet seems to be that this is exactly what will happen this time around. Perhaps this time will be different and there will be some kind of real filibuster reform, but history tells us otherwise and, when it comes to the Senate, history has always been a much better guide than the latest round of “We’re not bluffing” from whichever party happens to control the Senate majority.

But NBC’s First Read contends it seems different this time:

And while this may seem like a threat you’ve heard before, this time it seems as if there isn’t any deal that will derail this likely action. Senate Democratic aides confirm to First Read that they’re expected to vote today to change the rules to eliminate the 60-vote threshold for all executive appointments, except to the U.S. Supreme Court. Such a move requires just a 51-vote majority, so Democrats could lose four of their colleagues and still win the vote. Senate Republicans counter that if Democrats go through with this change, they’ll reciprocate the next time they control the White House and the Senate — including for Supreme Court picks. “If [Senate Majority Leader Harry Reid] changes the rules for some judicial nominees, he is effectively changing them for all judicial nominees, including the Supreme Court,” Sen. Chuck Grassley (R-IA) said yesterday, per the Washington Post. But Harry Reid believes he does have 51 votes, especially since he convinced Sen. Dianne Feinstein (D-CA) to climb on board this nuke-option train. She had been an influential holdout in the past.

Jonathan Adler on the respected The Volokh Conspiracy law blog:

I have long argued against the use of filibusters and other delaying tactics to block confirmations. I believe that all judicial nominations should receive reasonably prompt up-or-down votes. The question has always been how to make this happen. In the past, I have encouraged a bipartisan deal to end the filibuster of all judicial nominations, such as an agreement to allow simple majority votes after the next Senate election, perhaps combined with a nominee swap as was used to end the blockade of President Bush’s nominees to the U.S. Court of Appeals for the Sixth Circuit. I still think such a deal is the best way to end the obstruction of judicial nominees, particularly given the long history of tit-for-tat-plus on judicial nominations. I also did not support the nuclear option when Senate Republicans considered it, as I did not think one party should change the Senate rules on a strict party-line vote. Perhaps I should reconsider.

The current super-majority requirement for judicial nominations, combined with the application of interest-group litmus tests on judicial ideology, has made it increasingly difficult to confirm high caliber judicial nominees, particularly if they have ever been involved in any controversial issue. The current confirmation gauntlet has discouraged Presidents from nominating many high-quality nominees (Conspirators perhaps?), and deterred others from accepting nominations if asked. It has also furthered the politicization of the judiciary by making confirmation contingent upon satisfying a minority of the Senate.

The filibuster of judicial nominees is bad for the courts. It was a bad thing when first used against Miguel Estrada [a Republican successfully filibustered by Democrats in 2003], and it is bad now. Of course it’s rich for Senator Reid and his colleagues to complain about the use of a tactic they themselves deployed with relish (and used to defeat just as many nominees), but that’s politics (and Kerr’s law). I have no idea how Senate Republicans are likely to respond if Senator Reid pulls the trigger, and how this could effect the ability of the Senate to conduct other business, but I won’t shed a tear for the end of judicial obstruction. So go ahead Harry, make my day. I am sure the next President will appreciate it.

And, indeed, if Republicans are in the majority look some Democratic partisans decry Republicans using their 51 votes to get conservative nominees through. Who ever said consistency was part of American politics in the 21st century?

FOOTNOTE: On the concept of court-packing, here’s what Rand Paul’s favorite speechwriter Wikipedia has to say on FDR’s 1937 effort to “pack” the court.

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