Nov 22 2013

Congressional Game of Chicken: Filibuster Has Been Mortally Wounded

Filibuster has suffered a mortal wound. In an historic vote, the Senate drastically change the game by eliminating the need for 60 votes to confirm a presidential nominee to executive and judiciary, ending at least some of the obstruction by Republicans that has hampered President Barack Obama’s administration. The final straw that changed the mind of Senate Majority Leader Harry Reid (D-VT) was the filibuster of the last three court appointment to the U.S. Court of Appeals for the District of Columbia Circuit, regarded as second only to the Supreme Court in influence, it plays a central role in upholding or knocking down federal regulations. The court was evenly divided between Democratic and Republican appointed judges with three vacancies that the Republicans were determined to keep vacant, along with the other 90 court vacancies, so long as Barack Obama was in the Oval Office. Thinking that Reid would never go “nuclear” and lacked the votes, the Republicans overplayed their hand angering the Democratic holdouts against limiting the filibuster. The changes will apply to all 1,183 executive branch nominations that require Senate confirmation, not just cabinet positions but hundreds of high- and mid-level federal agency jobs and government board seats. Needless to say, the Republicans are angry, as this also puts into play the possibility of ending filibuster altogether.

With filibuster gone, there is still an obstacle for judicial appointments known as the “blue slip rule.” As Kevin Drum explains at Mother Jones:

One of the Senate’s oldest traditions is that judicial nominees require approval from their home-state senators before they can move forward, and that approval comes in the form of a blue slip returned to the chairman of the Judiciary Committee. [..]

   Pre-1994: Generally speaking, only one blue-slip is needed for a nominee to move forward.

   1995-2000: Republicans take control of Senate and decide that two blue slips should be required. This makes it easier to kill Clinton nominees.

   2001: George Bush is elected president. Republicans no longer want to make it easy to block nominees, so they return to the rule that only one blue-slip is required to move forward.

   2001-02: Jim Jeffords defects, putting Democrats back in control of the Senate. They return to the rule requiring two blue-slips to proceed.

   2003: Republicans win back control of the Senate. They up the ante by effectively moving to a zero blue-slip rule: they’ll allow hearings on nominees even if no senators return blue-slips. Democrats threaten to filibuster over this rather obvious abuse of power and insist on a return to the two blue-slip rule.

   2007-Present: Democrats win control of the Senate and Pat Leahy of Vermont becomes chairman of the Judiciary Committe. Leahy is a traditionalist who maintains the two blue-slip rule.

By maintaining this rule, Sen. Leahy hurts Obama’s nominees in red states  where aggressive Republican refuse to approve even moderate judges.

As Chairman of this Committee, I have steadfastly protected the rights of the minority. I have done so despite criticism from Democrats. I have only proceeded with judicial nominations supported by both home state Senators. That has meant that we are not able to proceed on current nominees from Arizona, Georgia, Nevada, and Louisiana. I even stopped proceedings on a circuit court nominee from Kansas when the Kansas Republican Senators reversed themselves and withdrew their support for the nominee. I had to deny the Majority Leader’s request to push a Nevada nominee through Committee because she did not have the support of Nevada’s Republican Senator. I will put my record of consistent fairness up against that of any Judiciary chairman.

Perhaps this was why, even as a traditionalist, Sen. Leahy voted to change the filibuster rule.

On MSNBC’s All In, host Chris Hayes discusses the new rules and the history of filibuster with Senators Tom Udall (D-NM) and Tim Kaine (D-VA); former spokesman for Sen. Reid Jim Manley; and former Senate Parliamentarian Alan Frumin.