After months of threats, Senate Democrats, frustrated at the delaying tactics of their Republican colleagues, are, as they say in Washington, going nuclear.
On Thursday afternoon, in an effort led by Majority Leader Harry Reid, D-Nev., the Senate voted 52-48 to eliminate the filibuster on judicial nominations so the majority will no longer be able to block judicial nominees using procedural rules, except to the Supreme Court. It sounds like tedious, procedural stuff, but the stakes for both parties could not be higher.
The change has been long in the making. But a series of recent foot-dragging moves by Republicans in the Senate that have either delayed, blocked or rejected President Obama’s nominees has finally come to a head. Like the movie Network’s Howard Beale, Harry Reid is as mad as hell and he’s not going to take it any more.
On Tuesday, Senate Republicans blocked the third straight Democratic nominee to the D.C. Circuit Court of Appeals -- the most powerful court in the land except the Supreme Court itself -- which has three vacancies. While the filibuster is generally reserved for extraordinary circumstances, such as in the case when a nominee is deemed ideologically extreme, this time Republicans used it because, they argued, the D.C. Circuit doesn’t need any more judges.
“Republicans have decided to adopt and continue to adopt a strategy of obstruction and nullification,” Norm Ornstein, a conservative commentator, said last week.
This was the final straw for Democrats, who are in the process of changing the Senate rules to put an end to the filibuster -- the tactic, made famous in the James Stewart/ Frank Capra movie Mr. Smith Goes to Washington, whereby a senator talks interminably to prevent the Senate taking action.
“The American people believe the Senate is broken. And I believe the American people are right,” Reid said on the Senate floor Thursday. “I am on their side, which is why I propose an important change to the rules of the United States Senate.”
Since President Obama assumed office in 2009, the filibuster has been used constantly to block legislation. But blocking the three judicial nominees this month has pushed Democrats over the edge. “I have changed my mind and I am for it,” Sen. Dianne Feinstein, D-Calif., previously an opponent of filibuster reform, told NBC News this week.
By deciding to block every nominee, Republicans seem to have left Democrats little choice but to act. It’s no longer a question of ideology – of approving a different nominee of the same party with different views – but of calling a halt to all appointments, full stop.
In the past, Democrats and Republicans have struck last-minute deals to keep the filibuster in place because both sides wanted to preserve the power to block a radical nominee if they find themselves in the minority. But there is now a sense that if Democrats don’t go nuclear, Republicans won’t hesitate to do so. In other words, preserving the filibuster is no longer a sure way for Democrats to protect their filibuster rights if they become the minority in the future.
“The notion that if [GOP Senate Minority Leader] Mitch McConnell had a Republican in the White House and a Republican Senate, and they had an opportunity to put in a lot of ultra-conservative judges and were blocked only by Democratic filibusters, that he would say, ‘Well, we’re going to hold back,’ is nonsense. He’d do it in a nanosecond,” Ornstein said. “It’s not like you are protecting yourself in the future anymore.”
The D.C. Circuit holds enormous power because it hears cases that aim to clarify federal laws and regulations – meaning it can uphold or strike down significant pieces of federal legislation and actions taken by federal bodies such as the Environmental Protection Agency. Currently, five of the six senior judges (semi-retired judges who still decide cases) are conservative, meaning the court generally sides with Republican causes.
Democrats got a stark reminder of this last month when Judge Janice Rogers Brown on the D.C. Circuit ruled that the mandate that employers cover contraception under the Affordable Care Act is a violation of religious liberty. The decision particularly irked Democrats because Brown -- famous for saying things like “in the heyday of liberal democracy, all roads lead to slavery” -- ascended to the D.C. Circuit as part of a deal to avert the nuclear option in 2005. Now, Democrats are watching helplessly as Republicans block all their nominees.
“The Senate is a living thing and to survive it must change,” Reid said Thursday. “To remain relevant and effective as an institution, the Senate must evolve to meet the challenges of a modern era.”