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Will Another Senate Showdown Over Filibusters Lead To The ‘Nuclear Option’?

Filibuster

Earlier this week, Senate Republicans successfully blocked the nomination of Robert Wilkins to the Court of Appeals For The District of Columbia Circuit via the now familiar method of the procedural cloture vote, which in this particular case fell seven votes short of the 60 votes needed to advance the nomination. This was the third of three nominations to what is typically seen as the most prestigious and important of the Circuit Courts of Appeal that have been blocked in the last month, with the nomination of Patricia Millett having been blocked in late October and the nomination of Nina Pillard having been blocked just last week. The arguments used by both sides were particularly interesting, because underlying them is the fact that the D.C. Circuit Court of Appeals is both important due to the number of cases involving the Federal Government  that this court hears, and due to the fact that it has been traditionally seen as a stepping stone to the Supreme Court itself. Indeed, of the nine Justices currently on the Court, all but one formerly served on a Circuit Court of Appeals and four of those remaining eight (Roberts, Scalia, Ginsburg, and Thomas) came from the D.C. Circuit Court of Appeals. Additionally, given the current makeup of the Circuit Court, there’s the perception that President Obama’s appointments would tip the balance on the Court slightly to the left. The argument, though, has been about whether these three appointments were actually necessary. Democrats contend that they are, of course, and Republicans say that they are and argue that one or more of the Judgeships on the Court out to be eliminated due to the Court’s decreased case load. Oddly, though, both sides are using the same caseload numbers to make their argument and it’s hard to tell which side is actually right.

In either case, though, the political issue has once again turned to the question of the use of the filibuster/cloture motion to block judicial nominee, and once again we’re at th point where Senate Democrats are again threatening to “go nuclear” in order to push the President’s nominees through the Senate:

WASHINGTON — Senate Democrats are on the verge of moving to eliminate the use of the filibuster against most presidential nominees, aides and senior party leaders said Wednesday, a move that would deprive Republicans of their ability to block President Obama’s picks for cabinet posts and the federal judiciary and further erode what little bipartisanship still exists in the Senate.

Senator Harry Reid of Nevada, the majority leader, is poised to move forward on Thursday with a vote on what is known on Capitol Hill as the “nuclear option,” several Democrats said. Mr. Reid and the senators who have been the most vocal on stopping the Republican blockade of White House nominees are now confident they have the votes to make the change.

“We’re not bluffing,” said one senior aide who has spoken with Mr. Reid directly and expects a vote on Thursday, barring any unforeseen breakthrough on blocked judges.

The threat that Democrats could significantly limit how the filibuster can be used against nominees has rattled Republicans. Senator John McCain, the Arizona Republican who has brokered last-minute deals that have averted a change to filibuster rules in the past, visited Mr. Reid in his office on Thursday but failed to strike a compromise.

Senator Charles E. Grassley of Iowa took to the Senate floor and denounced Democrats, saying that if they changed the rules, Republicans would consider them applicable to all judicial nominees, including those for the Supreme Court. Mr. Reid has said he supports keeping intact the minority party’s ability to filibuster controversial Supreme Court nominees.

“Apparently the other side wants to change the rules while still preserving the ability to block a Republican president’s ability to replace a liberal Supreme Court Justice with an originalist,” Mr. Grassley said.

Senate Democrats appear ready to take a step that members of each party have threatened for the better part of a decade, but have not taken, in part because of the political disruption it would create. But senators know this year’s majority could be tomorrow’s minority, yearning for the filibuster as a weapon.

We’ve been here before, of course. Both at the start of the 112th Congress in 2011 and the start of the 113th Congress this past January, Senate Majority Leader Harry Reid was being urged by Senators on his side of the aisle to use the start of a new Senate session to push through a filibuster reform plan. On both occasions, Reid ended up backing down from the threat in exchange for modest reforms in Senate ruled agreed to by Republicans. Then just this past July, we were in much the same position we appear to be in now, with Senator Reid appearing to threaten to “go nuclear” over votes on nominations to the National Labor Relations Board, only to end up reaching a deal with Republicans that allowed votes on those nominations to go forward.

This time around, though, things are supposedly different. As Greg Sargent noted earlier this week, Senator Reid is allegedly convinced this time that reforming the filibuster rules, at least as they apply to judicial nominations, is they only way that the Senate would be able to move forward on any of President Obama’s nominees, especially when it comes to nominees to the Circuit Courts, where a great deal of the “grunt work” of working out new Constitutional issues and applying Supreme Court precedent actually goes on. Additionally, there are at least some reports that longer serving Democratic Senators who had previously opposed the nuclear option because of its threat to Senate tradition and comity have come around to support the position of the younger members of the caucus when it comes to filibuster reform, the most public example of this being California’s Dianne Feinstein. This, along with other signs have lead to yet another round of breathless anticiapation about what would, not unarguably, be a “fundamental” shift in the nature of how the Senate operates, at least when it comes to certain matters.

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.

Update: Senator Reid did indeed go with a (limited) “nuclear option.” Details here.

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About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May, 2010 and also writes at Below The Beltway. Follow Doug on Twitter | Facebook

Comments

  1. michael reynolds says:

    Politics is so boooooring lately. A screwed-up website and a mis-used filibuster. Jesus. These people need a plot.

    Like or Dislike: Thumb up 14 Thumb down 0

  2. TPF says:

    You are probably right. But I wish we would go nuclear. Sick of the gridlock.

    Like or Dislike: Thumb up 3 Thumb down 0

  3. Barry says:

    Doug: “Oddly, though, both sides are using the same caseload numbers to make their argument and it’s hard to tell which side is actually right.”

    Doug, don’t even try to pull this lie on us; the GOP will fill that court the second that they have the Presidency again.

    Highly-rated. Helpful or Unhelpful: Thumb up 34 Thumb down 3

  4. C. Clavin says:

    More of your both sides do it horse shit. Give it a rest already. It’s lazy. And worse…it’s wrong.

    Ask yourself this:
    If Romney had won would Republicans be saying that the court’s caseload doesn’t merit a full complement of judges?
    And would Republicans stand for Democrats preventing him from altering the ideological balance of any court, much less the D.C. Circuit Court of Appeals?

    I regret that Republicans have chosen to obstruct instead of Govern. But that’s where we are at. Democrats have no choice…they go Nuclear…or they watch Republican obstruct even more.

    Highly-rated. Helpful or Unhelpful: Thumb up 27 Thumb down 2

  5. Mikey says:

    Oh, please. How many years have we been hearing about the “nuclear option?” The only thing that changes is which party is throwing out the empty threats.

    Nothing will change. Neither party really wants to modify the filibuster rules, because both understand the majority is not guaranteed or perpetual, and they don’t want to lose a powerful tool they can use when they return to the minority.

    Like or Dislike: Thumb up 5 Thumb down 0

  6. Stonetools says:

    At this point I think that republican obstructionism has reached such a level and become so brazen that I think Harry Reid will just have to pull the trigger. The Republicans appear to be daring him to do just that, and I think this time he will.

    Like or Dislike: Thumb up 6 Thumb down 4

  7. al-Ameda says:

    Given where we are now – with intense polarization, and the desire of one political party to obstruct as much governance as possible – perhaps it is time to dispense with the “but _________ (fill the blank) may find themselves in the minority soon” fig leaf and get this over with.

    After all, every two years we have national elections that shape and re-shape our Congress, so the public gets ample opportunity to decide whether or not they approve of the policies and cabinet-level and judicial appointments of ANY administration.

    Yes it is a risk for Democrats however, I believe that the time has come and that Republicans have richly earned a beat down.

    Like or Dislike: Thumb up 6 Thumb down 0

  8. Brett says:

    Reid might be thinking that Republicans will just blow apart the filibuster completely if or when they retake the Senate anyways, so they might as well just end it on judicial nominees now.

    Truth be told, it might be a good thing if the filibuster ended. There’s some bad aspects to that, but having a Congress that’s completely deadlocked over and over again is just making the Presidency more powerful, concentrating more and more power in his or her hands. And it would be a recognition that we’re back in an era of partisan government, so we might as well have effective partisan government.

    Like or Dislike: Thumb up 13 Thumb down 0

  9. TheColourfield says:

    They may as well do it now and pass everybody they can. Is there any doubt that given today’s version of the GOP (Rand, Rubio, Cruz etc.) that they wouldn’t go “nuclear” the second they gained control of the senate.

    Just look at what has happened in states like Wisconsin and North Carolina where the republicans gained control.

    Like or Dislike: Thumb up 10 Thumb down 1

  10. Just Me says:

    I have long believed presidential appointments should be a simple majority vote.

    I think there should be debate and definitely concerns raised if a nominee has a conflict of interest or other strike against them but all nominees by the president should get a vote and approval based on a simple majority with no filibuster.

    I think the filibuster is a solid minority tool when it comes to legislation but it shouldn’t be a tool for appointees by the president.

    Like or Dislike: Thumb up 11 Thumb down 0

  11. Tony W says:

    I actually have little problem with the Senate filibuster, except for the wimpy way they do it these days. I want hours and hours of oratory. I want – nay demand – high drama!

    It is too easy to lazily shut down legislation today. If we demand some level of personal sacrifice in order to obstruct, perhaps that will satisfy a chunk of the insatiable appetite for nothingness from which the current Senate minority (and by extension the rest of us) suffer.

    Like or Dislike: Thumb up 2 Thumb down 1

  12. JKB says:

    Sounds like somebody sees themselves losing the Senate next year. Perhaps for a long, long time.

    Like or Dislike: Thumb up 1 Thumb down 9

  13. Blue Galangal says:

    One of the reasons Feinstein allegedly changed her mind is because of the conservative judge who was voted in on a compromise when the Republicans threatened to go nuclear in 2005 – she’s the judge who said that private corporations can have consciences and therefore don’t have to provide birth control coverage. Apparently the last straw for Feinstein.

    Like or Dislike: Thumb up 7 Thumb down 0

  14. PJ says:

    @JKB:
    Do you know when Republicans last held a filibuster proof majority in the Senate? That would be 80-90 years ago.

    The next time Republicans hold both the presidency and the majority in the Senate, they would have invoked the nuclear option, because how else would they get any judges through the Senate?

    Like or Dislike: Thumb up 5 Thumb down 0

  15. PJ says:

    Harry Reid just announced on the Senate floor that he will move to change the filibuster rules. What we expect is that Reid will in the next few minutes bring up one of the Obama judicial nominees for a vote. When Republicans filibuster, Reid will formally call for a rules change and bring it to a vote. Senate Democrats will prevail on a simply majority vote and the filibuster as we know it will no longer apply to executive branch nominees and judicial nominees below the Supreme Court.

    Excellent.

    Like or Dislike: Thumb up 13 Thumb down 1

  16. al-Ameda says:

    @JKB:

    Sounds like somebody sees themselves losing the Senate next year. Perhaps for a long, long time.

    I do not believe that Republicans have sufficient time to gerrymander and rig the entire country to steal that many House and Senate elections.

    Like or Dislike: Thumb up 8 Thumb down 0

  17. C. Clavin says:

    @JKB:
    Are you saying Republicans will win a filibuster-proof majority…or are you saying you don’t understand how the Senate works?

    Like or Dislike: Thumb up 11 Thumb down 1

  18. Pinky says:

    @Brett: I misread your comment. I thought you were writing about “having a Congress that’s completely dreadlocked“. No one couild possibly complain about that.

    Like or Dislike: Thumb up 6 Thumb down 0

  19. Tillman says:

    @PJ: At long last, Kathleen Sebellius and Eric Holder can be fired.

    Like or Dislike: Thumb up 1 Thumb down 0

  20. SKI says:

    The main argument used back in January was that reforming the fillibuster rules would “destroy the comity” of the Senate and prevent any legislative priorities (immigration, tax reform, etc.)from happenning. Given that the chance of anything legislative has already gone out the window, there isn’t that downside anymore. The only thing that is left is that when the Republicans get the majority, superdestroyer’s delsuions of a one-party state aside, the tables will be turned. However, the sense is that the GOIP will blow it up anyway in light of their tactics so, why deny yourself a tool you believe your opponents will use regardless of your restraint.

    Unless McConnell caves (and he just asked for a rceess until 5pm), it is going to get reformed.

    Like or Dislike: Thumb up 4 Thumb down 0

  21. PJ says:

    @JKB:

    Sounds like somebody sees themselves losing the Senate next year. Perhaps for a long, long time.

    Furthermore, you do understand that there being 55 Senators voting with the Democrats or 49 Senators voting with the Democrats doesn’t matter when the requirement due to constant filibusters are 60 Senators?

    Like or Dislike: Thumb up 4 Thumb down 0

  22. Rick Almeida says:

    @al-Ameda:

    I do not believe that Republicans have sufficient time to gerrymander and rig the entire country to steal that many House and Senate elections.

    How do you gerrymander a Senate race?

    Like or Dislike: Thumb up 6 Thumb down 0

  23. SKI says:

    BOOM!

    Like or Dislike: Thumb up 7 Thumb down 0

  24. Rafer Janders says:

    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.

    Nice false equivalence there, Doug. Some helpful reminders from Reid’s speech today:

    “In the history of the Republic, there have been 168 filibusters of executive and judicial nominations. Half of them have occurred during the Obama Administration during the last four and a half years.”

    “Republicans mounted a first in history filibuster of a highly qualified nominee for Secretary of Defense. Despite being a former Republican Senator and a decorated war hero, Defense Secretary Chuck Hagel’s nomination was pending in the Senate for a record 34 days, more than three times the previous average.”

    “Only 23 district court nominees have been filibustered in the entire history of this country. Twenty of them were nominated by President Obama.”

    Highly-rated. Helpful or Unhelpful: Thumb up 17 Thumb down 0

  25. Ben says:

    Wow, they actually went through with it. I didn’t think Harry had the balls.

    Like or Dislike: Thumb up 7 Thumb down 0

  26. C. Clavin says:

    Good for Harry.
    And the Republic.
    Cue the Republican hyperventilation in 3, 2, 1….

    Like or Dislike: Thumb up 7 Thumb down 0

  27. Rafer Janders says:

    Booyah.

    Like or Dislike: Thumb up 5 Thumb down 0

  28. Rafer Janders says:

    Straight up or down vote! Straight up or down vote!

    Like or Dislike: Thumb up 7 Thumb down 0

  29. C. Clavin says:

    @Rafer Janders:
    Reid’s speech pretty much puts the lie to Doug’s BOTH SIDES bullshit.

    Like or Dislike: Thumb up 5 Thumb down 2

  30. David M says:

    The GOP really should rethink what they are doing here. Filibusters aren’t necessarily a bad thing, if used judiciously. Unfortunately the current GOP can’t think that far ahead. My take on them breaks down as follows:

    Filibusters of executive branch nominations? Should be limited to one or none for a presidential term.

    Filibusters in general? Should not be used to slow down routine business

    Filibusters of legislation? Should be used sparingly, not routinely

    Filibusters of a position rather than a nominee? Cannot be allowed

    Filibusters of non-supreme court judges? Should be limited to one or none for a presidential term.

    Filibusters of supreme court judges? Should be used sparingly, not routinely

    The GOP have violated every one of those, so we’ve reached a point where it’s now causing more harm than good.

    Like or Dislike: Thumb up 2 Thumb down 1

  31. rudderpedals says:

    What Frist wrought, Reid finished. Complaints should be directed to the good Dr. Frist.

    Like or Dislike: Thumb up 2 Thumb down 0

  32. Tillman says:

    And to think, only a couple of years late. Then again, waiting this long has proven to be an admirable demonstration of Republican overuse of the filibuster.

    Like or Dislike: Thumb up 8 Thumb down 0

  33. Woody says:

    Well, that was interesting – almost anticlimactic.

    As to the “both sides have done it” nonsense – I’d be in favor of a party opposing an extremist – or an incompetent – but the GOP has abused the power to the point of simply filibustering as a purely tactical decision.

    Not policy. Tactics. Your modern GOP, folks.

    Like or Dislike: Thumb up 11 Thumb down 0

  34. al-Ameda says:

    @Rick Almeida:

    How do you gerrymander a Senate race?

    I stand busted, I was thinking The House.

    Like or Dislike: Thumb up 4 Thumb down 0

  35. stonetools says:

    @Rafer Janders:

    Looking at the speech, I am enraged that it took so long. Faced with similar Democratic obstructionism, Republicans would have pulled the trigger long ago.
    I hope the Obama Administration follows up by sending up a torrent of nominees. Let’s get this country moving again! (An old slogan, but a goodie)>

    Like or Dislike: Thumb up 5 Thumb down 0

  36. C. Clavin says:

    @al-Ameda:
    Hey…at least you owned up to it…instead of doubling down on the stupid…like the commentrolls do.

    Like or Dislike: Thumb up 4 Thumb down 0

  37. Mikey says:

    @Mikey: Wow, color me shocked. I didn’t think they’d do it.

    Like or Dislike: Thumb up 3 Thumb down 0

  38. michael reynolds says:

    It’s about time.

    Like or Dislike: Thumb up 4 Thumb down 0

  39. HarvardLaw92 says:

    @michael reynolds:

    It’s well past damn time, IMO. Advise and consent has been turned into “run out the clock in order to keep as many slots open until we can fill them with the ideologues that we want.”

    It’s the most blatant attempt to stack the courts that we have seen since Roosevelt’s little drama.

    Like or Dislike: Thumb up 8 Thumb down 0

  40. stonetools says:

    Senator Jeff Sessions from Alabama is bellowing nonsense about Harry Reid doesn’t get to dictate the rules. Meanwhile , this tweet from Brian Beutler:

    Brian Beutler ‏@brianbeutler 5m
    So weird to read this sentence like we’re a democracy or something RT @AJentleson Coda: Cloture was invoked on the Millett nomination 55-43.

    I guess now its time to sit down and talk to the youngsters about what it was like to live in a time where men were free….

    Like or Dislike: Thumb up 3 Thumb down 0

  41. David M says:

    So the latest Republican attempts at nullification and court packing have come to an end. Seems like a good thing.

    Like or Dislike: Thumb up 5 Thumb down 1

  42. al-Ameda says:

    @stonetools:

    Brian Beutler ‏@brianbeutler 5m
    So weird to read this sentence like we’re a democracy or something RT @AJentleson Coda: Cloture was invoked on the Millett nomination 55-43.

    We’re going to need a lot of new Zapruder-type footage to document the meltdown that the conservative nutcases are going to go through after Reid finally called bull*** on the GOP’s five year effort to nullify the results of the 2008 and 2012 national elections.

    Like or Dislike: Thumb up 2 Thumb down 0

  43. anjin-san says:

    @ Rafer Janders

    If you take Doug’s false equivalencies away from him, he will simply cease to exist.

    Like or Dislike: Thumb up 0 Thumb down 0