After concluding Republicans are not making a good-faith effort to evaluate President Barack Obama’s judicial appointments but are simply trying to keep Obama from appointing judges of his ideological choice, Democrats have removed the right of the minority to filibuster on most Presidential judicial nominees. Supreme Court nominees are not included. The result: reaction largely among partisan lines and predictions that while the move may make the Senate more efficient by eliminating excessive filibuster use by GOPers under Obama, it will also increase Congress’ political toxicity and accentuate the country’s already bitter partisan divisions.
And it will also mean that when a Republican President is in power, his party can get most nominations through without worrying about the albatross of the filibuster, which has gone from the “Mr. Smith Goes to Washington” endless speech to politicos simply indicating they want to filibuster. The move is a major shift in the way the Senate does business and will likely mean that just as past Presidents have been allowed to do, Obama will leave his stamp on the judiciary but Democrats will have to battle Republicans using every legislative rule in the book as it happens. It also means future Presidents will have the same opportunity, with the courts likely see-sawing according to who’s in power with the minority party having less of an opportunity to halt Oval office appointment power.
In the short term, it’s good news for ideological talk show hosts and mega-partisan websites since both sides will be fired up –and on political fire. America’s booming industry that benefits from political controversy will be attracting additional readers, viewers and listeners in coming days — and months — due to the vote and its probable political and judicial consquences.
And it’ll also be welcomed by my political scientists, who’ve said the filibuster in the Senate had gotten way out of control, light years away from how it was traditionally used. In May 1972, the Washington Post’s Ezra Klein offered this graph:
Here’s part of the debate over the rules change:
Reaction is pouring in and most of the partisan reaction is what you’d expect. The Washington Post:
The partisan battles that have paralyzed Washington in recent years took a historic turn on Thursday, when Senate Democrats eliminated filibusters for most presidential nominations, severely curtailing the political leverage of the Republican minority in the Senate and assuring an escalation of partisan warfare.
The rule change means federal judge nominees and executive-office appointments can be confirmed by a simple majority of senators, rather than the 60-vote super majority that has been required for more than two centuries.
The change does not apply to Supreme Court nominations. But the vote, mostly along party lines, reverses nearly 225 years of precedent and dramatically alters the landscape for both Democratic and Republican presidents, especially if their own political party holds a majority of, but fewer than 60, Senate seats.
Senate Minority Leader Mitch McConnell (R-Ky.) accused Democrats of a power grab and suggested that they will regret their decision if Republicans regain control of the chamber.
“We’re not interested in having a gun put to our head any longer,” McConnell said. “Some of us have been around here long enough to know that the shoe is sometimes on the other foot.” McConnell then addressed Democrats directly, saying: “You may regret this a lot sooner than you think.”
Sen. Charles E. Grassley (R-Iowa), the ranking Republican on the Senate Judiciary Committee, warned Democrats against the rule change on Wednesday, saying that if the GOP reclaimed the Senate majority, Republicans would further alter the rules to include Supreme Court nominees, so that Democrats could not filibuster a Republican pick for the nation’s highest court.
The vote to change the rule passed 52-48. Three Democrats – Sens. Carl Levin (D-Mich.), Joe Manchin (D-W.Va.) and Mark Pryor (D-Ark.) – joined with 45 Republicans in opposing the measure. Levin is a longtime senator who remembers well the years when Democratic filibusters blocked nominees of Republican presidents; Manchin and Pryor come from Republican-leaning states.
Under the old rules it took 60 votes to break a filibuster. The change now allows most filibusters of Obama nominees to be stopped with 51 votes–a simple Senate majority.
The rules change only applies to executive and judicial nominees, not Supreme Court nominees.
Typically 67 votes are required to change Senate rules, but under the nuclear option, Democrats – who control the chamber with a 55-45 majority – changed those rules with a simple majority vote.
“It’s time to get the Senate working again,” Senate Majority Leader Harry Reid said on the Senate floor. “Not for the good of the current Democratic majority or some future Republican majority, but for the good of the United States of America. It’s time to change. It’s time to change the Senate before this institution becomes obsolete.
The move came about after Republicans blocked three judicial nominees to the DC Circuit Court of Appeals, known as the highest court in the land after the Supreme Court.
Senate Minority Leader Mitch McConnell said Reid “promised over and over again that he wouldn’t break the rules of the Senate to change the Senate.”
“When Democrats were in the minority they argued strenuously for the very thing they now say we will have to do without, namely the right to extend a debate on lifetime appointments. In other words they believe that one set of rules should apply to them and another set to everybody else,” he added.
Reid invoked the swath of GOP filibusters of cabinet, sub-cabinet and judicial nominees, from Chuck Hagel and Mel Watt to executive positions and Obama’s three nominees to the powerful D.C. Circuit Court of Appeals — Patricia Millett, Nina Pillard and Robert Wilkins.
“Is the Senate working now? Can anyone say the Senate is working now?” the majority leader said before the vote. “I don’t think so.”
The “Reid Rule,” as supporters are calling it, does not affect the minority party’s ability to filibuster Supreme Court nominees or legislation.
Senate Minority Leader Mitch McConnell (R-KY) fumed at Reid’s decision, accusing him of trying to change the subject from Obamacare and “cook up some fake fight over judges.” He argued that “by any objective standard, Senate Republicans have been very, very fair to this president” when it comes to letting him appoint his nominees.
Here’s how it happened. First Democrats called for a simple-majority vote to move to reconsider the failed nomination of Patricia Millett, which passed 57-40. Then McConnell scrambled to head off the rules change by calling for a motion to adjourn the Senate until 5 p.m on Thursday. That vote failed, 46-54. Then Democrats moved to reconsider the Millett nomination, which had to be at a 60-vote threshold, and Republicans filibustered her again, 57-43.
At that point, Reid took the historic step of raising a point of order that when the Senate votes on cloture again, the threshold should be at a simple majority. Under standing rules, the presiding offer ruled that motion out of order. Reid then appealed the ruling, and a majority of senators (52 — all Democrats) voted against upholding the filibuster. The vote was 48 to keep the filibuster, 52 to scrap it. That historic vote created a new precedent by which a simple majority may bypass cloture on nominations.
But recently Republicans have blocked three straight picks to the highly influential U.S. District Court of Appeals. Though the court has three vacancies, Republicans have said they don’t need to be filled because, as McConnell put it, the court “doesn’t have enough work to do.”
Democrats cried foul, accusing the GOP of barring nominees not because of any legitimate concerns with their credentials, but simply because they didn’t want to let Obama add his preferred judges to a court that leans conservative. Indeed, Republicans have suggested reducing the total number of judges on the bench to keep the court balanced in their favor.
“There isn’t a single legitimate objection to the qualifications of any of these nominees,” Reid said Thursday.
The GOP’s latest tactics put the filibuster debate “in a whole new realm,” Sen. Jeff Merkley (D-Ore.) said Wednesday on MSNBC.
“When the minority of one branch can deeply sabotage the functioning of the executive branch and the judicial branch, you do not have co-equal branches,” he said. “It is unacceptable and we got to change the rules.”
Moreover, Democrats felt that the latest obstruction proved they could no longer trust the GOP’s promises to not abuse the filibuster.
“In baseball, it’s three strikes and you’re out,” Merkley said in a statement. “Republicans have struck out when it comes to keeping their promises on nominees.”
SOME BLOG REACTION:
The only Democrats who didn’t go along were long-time “nuclear” opponent Carl Levin and two red-state senators of wandering loyalty, Joe Manchin and Mark Pryor. It took a lot of GOP obstruction to create this level of Democratic loyalty.
It’s a 10-kiloton bomb, not a 10-megaton one: Supreme Court nominees will still require 60 votes for cloture before confirmation. The possibility of a Republican president and a Republican Senate pushing through pro-life justices is too horrifying to the left for them to risk changing the rules on SCOTUS appointments too.
This doesn’t apply to legislation either, but so what? Once the precedent of weakening the filibuster in one context is set, it’s easy for either party to cite it in expanding that precedent to another context. My new mantra: 51 votes for repeal.
….Obama will still be in the White House in 2015 even if Democrats are wiped out in Congress by a backlash to ObamaCare, so there’s no risk of Republicans ramming their own appointees through until 2017 at the earliest. Essentially, he’s betting that in 2016 Democrats either will reclaim the Senate or hold the White House, either of which will mean a continuing check on GOP power. It’s a gamble but it’s not a crazy one. You could even argue that the GOP should have done it itself long ago.
—The Daily Kos notes that McConnell didn’t always have this view on the filibuster, and offers this video clip:
–Chris Cillizza offers how the Senate became the House in four steps.
Once that happened, Reid went nuclear. He raised a point of order calling for a majority vote to move forward. The Senate parliamentarian ruled Reid’s motion out of order. Reid then appealed the ruling, and 52 Democrats supported him. That vote, in effect, altered the Senate rules: A simple majority is now sufficient to cut off filibusters on nominations.
That maneuver, in itself, is a huge deal. In the past, a two-thirds majority has been required to change the Senate’s rules in the middle of the session. The fact that Reid changed the rules with a simple majority sets a new precedent — that’s why it’s known as the “nuclear option.”
Reid had threatened this maneuver before after growing frustrated by GOP filibusters, but each time, he backed down after Republicans agreed to let some nominations through. This time, there was no deal…
….Back in June, McConnell warned that if Reid changed the filibuster rules for executive-branch nominees, the filibuster would eventually die altogether. “There is not a doubt in my mind,” he said, “that if the majority breaks the rules of the Senate to change the rules of the Senate with regard to nominations, the next majority will do it for everything.”
—Plumb Line’s Jonathon Bernstein sees this as a huge change and asks four questions:
* Will the Republicans retaliate? How? The reason it’s called the “nuclear option” is because the minority has always threatened to “shut down” the Senate using other procedural tricks if it happened. I’ve been skeptical that they’ll follow through, but we’ll see.
* Outside of obstruction and retaliation, will going nuclear affect the ability of the parties to work together in areas, such as the budget, where they must make deals?
* What of the legislative filibuster? Now that majority-imposed reform has happened, will it spread rapidly to legislation the next time it matters? Or will the incentives for Senators to retain it — keeping their individual influence — preserve it?
* How will the new Senate actually work out in practice on nominations? Will Senators still be able to put holds on nominations when it isn’t backed up by the need for a super-majority to move to a final vote? It’s worth noting that the filibuster/cloture procedure was not eliminated (at least if I understand correctly); instead, the number for cloture was dropped to a majority. Therefore, an objection can still slow things down for several days. Of course, now that the precedent has been set, that could be eliminated as well, presumably.
We really don’t know exactly how this will play out, and what the Senate will be like in 2015. It’s going to be fascinating to watch. But it’s certainly a major, important change. And one thing that does appear clear: Barack Obama’s nominees will soon be sitting on the DC Circuit Court.
—“The Monkey Cage’s” Sarah Binder gives several predictions of how the Senate will now change. Here are the last three:
4. Will GOP senators retaliate by blowing up every remaining bridge in sight? This has historically been a viable threat that has undermined majorities’ efforts to go nuclear. But such retaliation clearly did not dissuade Reid and his colleagues from going forward. As he said on more than one occasion, how much worse can the Senate get? Or as Greg Koger has suggested, senators are already exploiting the least costly avenues of obstruction. To be more obstructive would likely begin to impose more costs on the minority that they might not want to absorb. Hanging around the chamber to cast votes just to slow down the majority might not be worth it for the minority. And at some point, the risk of being tagged as obstructionist could hurt GOP senators in 2014 (though this remains to be seen of course).
5. Is the filibuster doomed? Many speculate that the GOP refused to compromise to forestall the Democrats’ nuclear move because they secretly plan to do away with the filibuster when they regain control of the Senate and the White House. I’m not so sure. I do think it will be hard to maintain the filibuster for Supreme Court nominees if Democrats threaten to filibuster the next Supreme Court appointment when the GOP control the White House and the Senate. But senators still do love the filibuster, even when they struggle in the majority to get things done. To be sure, today’s Democratic maneuver makes going nuclear look really easy, but I’m not yet convinced that the filibuster for legislative matters will also die a swift death at the hands of even the most frustrated majority. Of course, with the House in GOP hands, Democrats understand the futility of doing away with the rest of Rule 22 quite so fast.
6. And what do students of the Senate really think about the nuclear option? Of course, we disagree! But I’m in Steve Smith’s camp when he notes that the Senate Democrats “took the brute force approach.” Democrats could have offered a resolution to formally change the rules, and then seek a ruling that a majority could cut off debate by majority vote on that rules resolution. The end result would be a vote to formally change Rule 22 so that the Senate’s interpretation of the rules (majority cloture for nominations) would match the formal rule. Instead, Democrats created a new precedent by majority vote that reinterprets the formal rules of the Senate in a way that is at odds with the formal Rule 22. In other words, when you look up Rule 22, you won’t see a formal exception for executive and judicial nominations carved out of it. Yes, Senate majorities create new precedents to interpret the rules regularly. And the end result was the same, even if Democrats could have taken a different route to get there.
Short term: What a flood of new judges we will have! Long term: The American people will see what sort of judges Obama and the Senate majority installs, the GOP will highlight their “left-wing activism” (or whatever it might be called), the American people will respond (perhaps becoming alarmed), a Republican President will (sooner or later) be elected, he or she will feel fully empowered to pick excitingly conservative judges (the Bork kind, not the bland kind), Democrats will rail against their “right-wing activism,” the American people will respond (taking sides between the conservative and liberal activist judges and the role of the judiciary in our democracy), and who knows what will happen in the next presidential election and the one after that and after that?
I’ve said here many times before that I thought that filibuster reform of some kind was both necessary and proper. This seemed to be especially true when it comes to Presidential appointments to the Executive Branch since, as a general rule, I believe that President’s should be permitted to have as their principal advisers and assistance the people that they select unless there is something wrong with the nominee on a professional or personal level. Things are a little more complicated, though, when it comes to judicial appointments. Given that appointments to the Federal Judiciary are lifetime appointments, the vote that each nominee receives in the Senate is, in the end, the one and only opportunity that an elected branch of government will have for oversight over them. For that reason, I can see an argument for allowing a Senate minority to apply more scrutiny to these nominees than to, say, a nominee to a Cabinet Department or Federal Agency, most of whom will be subject to significant Congressional oversight and not be in office longer than the term of the current President in any case. It’s also worth noting that, notwithstanding the block placed against the three nominees to the D.C. Circuit, most of the judicial nominees that President Obama has sent to the Senate have been confirmed rather easily, and the most of the nominees at the Federal District Court level have been confirmed unanimously or nearly unanimously. Personally, I would have preferred to see the 60 vote rule stay in place for Circuit Court nominees as it has for the Supreme Court, but obviously Senator Reid realized he had the votes to extend it that far.
As I noted above, the biggest question going forward is what today’s developments do to that ephemeral Senate goal of “comity,” which allows the body to move forward at times without having to comply with all of its more complicated rules. In addition to the holds and lack of unanimous consent that I noted above, Senate Republicans could also force Reid to strictly comply with Senate rules that are normally waived, such as those dealing with the actual reading of the text of bills, something which would considerably slow the ordinary business of the Senate down. Now, some will argue that the GOP couldn’t possibly make things move slower in the Senate than they already do, but that may not necessarily be the case, and it seems unlikely that Reid would have sufficient support in his caucus for the kind of wholesale rewriting of the rules that would be required to deal with those efforts. So, with the Senate Democrats having made their choice and voted in without consultation with the minority a rules change that could come around to bite them in the future when they are in the minority, we’ll have to just sit back and see what the consequences will be. It could all end up being very entertaining, if you’re into legislative battles that is.
—Patterico before the actual vote:
TO: HARRY REID
RE: YOUR NEED TO TREAD CAREFULLY
Y’all filibustered Miguel Estrada. I for one will never forgive you for it. Live by the sword, die by the sword. I argued against the filibuster when we were in the majority. Those (like me) who argued against the filibuster of judicial nominees lost. Now you have to live with the consequences of what you did.
Take away this tool from us, and we will take it away from you. There will be no more playing by different rules when we are in the majority again. This is your final warning. That is all.
I think this is a simple matter of the Republicans overplaying their hand and underestimating their adversaries. They aren’t playing out a clever strategy; they are driven by ideological blindness.
Surely, they will take whatever advantages they can from whatever the Democrats do, but they aren’t secretly hoping that the Democrats will do their dirty work for them. The Courts are too important to their overall strategy for them to sacrifice their ability to obstruct as part of a larger, more devious plan.
—The Brennan Center for Justice at NYU School of Law released the following statement from President Michael Waldman:
“The Senate’s action today is a significant step to help overcome government dysfunction. The Senate’s proper role is to advise and consent, not obstruct and deny. Recent filibusters have paralyzed Washington. One branch of government is preventing the other two from operating. Ending rampant filibuster abuse is vital for our courts to fulfill their promise of justice and our agencies to effectively execute our laws.”
–-The Center’s Victoria Bassetti ran this must-read-in-full post on the Center’s website. Here’s the ending:
The debate this week over the need to fill three vacancies on the DC Circuit has not turned on whether the three nominees are qualified. Instead, it has turned on whether the caseload on the circuit warrants a full complement of judges and whether the ideological balance on the court will be undone if a Democratic president is allowed to appoint so many judges. (Full disclosure: One of the three vacancies was created when the judge I clerked for, appointed by President George H.W. Bush, took senior status).
These points of debate are well worn. Republican and Democratic senators actually seem to have just swapped talking points written the last time the issue arose in the mid-2000s, when Democrats argued that the court was underworked.
Neither party has clean hands in this debate. But one thing is clear. With regard to the administration of justice, in the last 20 years the filibuster has enabled a growing and dangerous politicization of the judicial nomination and confirmation process. Sometimes one has to go nuclear.
—The Atlantic’s Molly Ball:
But no one should expect a sudden parting of the partisan waters in Washington, where the Republican-led House can still be counted on to stymie most Democratic policy proposals. And the question on many Senate watchers’ minds now is whether McConnell will get his revenge by finding new means of obstruction.
In his speech, the minority leader warned Democrats, “You’ll regret this, and you might regret it even sooner than you might think.” Even without the filibuster, McConnell still has plenty of procedural ways to gum up the Senate works, Jim Manley, a former Reid aide, told me. For example, on rare occasions, Republicans have withheld the routine “unanimous consent” required to allow committees to meet each afternoon the Senate is in session.
“It’s the right thing to do, don’t get me wrong,” Manley said of Reid’s gambit. “But actions have consequences, and McConnell’s got plenty of options available to him.”
But what if filibusters came at a cost of some sort? There have been several proposals along these lines, and all of them would have allowed the minority party to obstruct things they truly felt strongly about. But there would have been a limit to how many things could be obstructed, or how long the obstruction could go on, and the majority party could eventually have gotten its way if it felt strongly enough. It would have been ugly, but at least Republicans would have retained some ability to gum up the works.
Instead, by refusing to compromise in any way, they’ve lost everything. Just as they lost everything on health care by refusing to engage with Democrats on the Affordable Care Act. Just as they lost everything on the government shutdown and the debt ceiling. Just as they lost the 2012 election.
Hard-nosed obstinacy plays well with the base, but it’s not a winning strategy in the end. Republicans never seem to learn that lesson.
A CROSS SECTION OF TWEETS:
I’m old enough to remember when Sen. McConnell insisted on up-or-down votes for judicial confirmations. https://t.co/qEcBrh3yNR
— Senator Harry Reid (@SenatorReid) November 21, 2013
At least talking point is in fact true – the founding fathers never contemplated the filibuster.
— John Avlon (@JohnAvlon) November 21, 2013
Congrats to Senate Dems for FINALLY! curbing the filibuster, whacking Repubs with a 2×4, and letting a twice-elected prez pick his judges.
— Dick Polman (@DickPolman1) November 21, 2013
To Senate Dems worried that nuking filibuster will haunt 'em in future GOP Senate: The Machiavellian GOP woulda taken adv & nuked it anyway.
— Dick Polman (@DickPolman1) November 21, 2013
The nation is in grave jeopardy with the latest act of leftist tyranny… http://t.co/jEbALLKivk
— Mark R. Levin (@marklevinshow) November 21, 2013
Power grab by Senate Democrats as their President's polling numbers tumble. http://t.co/eByVtVt7Fy
— RNC (@GOP) November 21, 2013
Why nuclear now? Filibusters of judicial nominees: 36 in 41 years, 1967-2008, and 31 in the five Obama years http://t.co/ub9IsjiJ5G
— EJ Dionne (@EJDionne) November 21, 2013
this is the best free republic comment on the nuclear option you'll ever read. pic.twitter.com/tJ3IuyZeC9
— Oliver Willis (@owillis) November 21, 2013
— Greg Sargent (@ThePlumLineGS) November 21, 2013
Fox News pundit says ending the filibuster could lead to "military coup" http://t.co/jaCoH2T1hN
— ThinkProgress (@thinkprogress) November 21, 2013
Going nuclear. Today Senate Majority Leader Harry Reid took a bold step to end Republican obstruction in the… http://t.co/orKuVBsk5Z
— misssmith11 (@misssmith11) November 21, 2013
Reid nuking senate to draw eyes from crashing ObamaCare. It's sorta like torching your house to distract burglar.
— Jonah Goldberg (@JonahNRO) November 21, 2013
How DARE Harry Reid impose majority rule on nominees! That's unprecedented, except for every Senate vote before 1853.
— Top Conservative Cat (@TeaPartyCat) November 21, 2013
— Joan Walsh (@joanwalsh) November 21, 2013
Team McConnell: 'Looking forward to President Rubio stacking the courts' http://t.co/88CX8U7TqI
— Daily Kos (@dailykos) November 21, 2013
loved seeing the expression on faces of Hatch and Grassley and McConnell who spent 2013 telling reporters Reid would never do it.
— Eric Boehlert (@EricBoehlert) November 21, 2013
Tea partier Bevin: McConnell "failed as a leader" in filibuster fight: http://t.co/dJpuzvj7Hr
— Talking Points Memo (@TPM) November 21, 2013
this GOP spin is gonna work wonders on independent voters: Obama's trying to "advance his agenda"!!; http://t.co/ZbIXvboNC4
— Eric Boehlert (@EricBoehlert) November 21, 2013
The nuclear option clears away the blockage in precisely the areas Obama's 2nd term agenda will be fought http://t.co/wruo8Hpbzu
— Jonathan Chait (@jonathanchait) November 21, 2013
— TNgardengirl (@gardengirl625) November 21, 2013
Thank You Harry Reid you senile old fool you have left #WethePeople with only one option Now we will prove that BO was born in Kenya TY fool
— Chuck Jones (@Earthfire9) November 21, 2013
mitch mcconnell looks like harry reid slapped his lunch tray right out of his hands in the middle school cafeteria.
— Oliver Willis (@owillis) November 21, 2013
Joe Gandelman is a former fulltime journalist who freelanced in India, Spain, Bangladesh and Cypress writing for publications such as the Christian Science Monitor and Newsweek. He also did radio reports from Madrid for NPR’s All Things Considered. He has worked on two U.S. newspapers and quit the news biz in 1990 to go into entertainment. He also has written for The Week and several online publications, did a column for Cagle Cartoons Syndicate and has appeared on CNN.