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,” he said.
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.
Infuriated by what he sees as a pattern of obstruction and delay over President Obama’s nominees, Senate Majority Leader Harry M. Reid (D-Nev.) triggered the so-called “nuclear option” by proposing a motion to reconsider the nomination of Patricia Millet, one of the judicial nominees whom Republicans recently blocked by a filibuster, to serve on the U.S. Court of Appeals for the District of Columbia.
The Senate voted 57-40, with three abstentions, to reconsider Millett’s nomination. Several procedural votes followed. The Senate Parliamentarian, speaking through Sen. Patrick J. Leahy (D-Vt.), the chamber’s president pro temp, then ruled that 60 votes are needed to cut off a filibuster and move to a final confirmation vote. Reid appealed that ruling, asking senators to decide whether it should stand.
Senators began voting about 12:15 p.m. The final vote was 52 in favor of changing the rule, 48 against.
The Democratic victory paves the way for the rapid confirmation of Millett and two other nominee to the D.C. appeals court. All have recently been stymied by GOP filibusters, amid Republican assertions that the critical appellate court simply did not need any more judges.
But the impact of the move is be more far-reaching. The means for executing this rules change – a simple-majority vote, rather than the long-standing two-thirds majority required to change the chamber’s standing rules – is more controversial than the actual move itself.
Many Senate majorities have thought about using this technical maneuver to get around centuries of parliamentary precedent, but none has done so in a unilateral move on a major change of rules or precedents. This simple-majority vote has been executed in the past to change relatively minor precedents involving how to handle amendments; for example, one such change short-circuited the number of filibusters that the minority party could deploy on nominations.
Reid has rattled his saber on the filibuster rules at least three other times in the past three years, yielding each time to a bipartisan compromise brokered by the chamber’s elder statesmen.
But no deal emerged by the time debate started Thursday morning. Sen. John McCain (R-Ariz.), the main negotiator who brokered recent deals to avert such a showdown, as well as one in 2005, met with Reid on Wednesday, but neither side reported progress.
The main protagonists for the rules change have been junior Democrats elected in the last six or seven years, who have alleged that Republicans have used the arcane filibuster rules to create a procedural logjam that has left the Senate deadlocked. Upon arriving in 2009, Sen. Tom Udall (D-N.M.) said, he found that “the Senate was a graveyard for good ideas.”
As he recounted in a speech this week, Udall said, “I am sorry to say that little has changed. The digging continues.”
As envisioned earlier this week, Democrats would issue a new rule that would still allow for 60-vote-threshold filibusters on legislation and nominees to the Supreme Court.
Republicans, weary from the third rules fight this year, seemed to have adopted a resigned indifference to this latest threat, as opposed to the heated rhetoric in mid-July when the issue last flared up. Sen. Charles E. Grassley (R-Iowa), the ranking Republican on the Judiciary Committee, mocked the idea that the Democrats would leave in place the filibuster rule for Supreme Court nominations, in the event that a GOP nominee wins the White House in 2016.
He made clear that if that occurred, and the GOP reclaimed the Senate majority, the Republicans would then alter the rules so that Democrats could not filibuster a Republican pick for the Supreme Court. “If [Reid] changes the rules for some judicial nominees, he is effectively changing them for all judicial nominees, including the Supreme Court,” Grassley said Wednesday.
Reid’s move is a reversal of his position in 2005, when he was minority leader and fought the GOP majority’s bid to change rules on a party-line vote. A bipartisan, rump caucus led by McCain defused that effort.
At the time, Sen. Mitch McConnell (R-Ky.) was the No. 2 GOP leader and helped push the effort to eliminate filibusters on the George W. Bush White House’s judicial selections. Eight years later, McConnell, now the minority leader, has grown publicly furious over Reid’s threats to use the same maneuver.
Democrats contend that this GOP minority, with a handful of senators elected as tea party heroes, has overrun McConnell’s institutional inclinations and served as a procedural roadblock on most rudimentary things. According to the Congressional Research Service, from 1967 through 2012, majority leaders had to file motions to try to break a filibuster of a judicial nominee 67 times – and 31 of those, more than 46 percent – occurred in the last five years of an Obama White House and Democratic majority.
Republicans contend that their aggressive posture is merely a natural growth from a decades-long war over the federal judiciary, noting that what prompted the 2005 rules showdown were at least 10 filibusters of GOP judicial nominees. To date, only a handful of Obama’s judicial selections have gone to a vote and been filibustered by the minority.
FLASHBACK – 2005