When it comes to the confirmation process for judicial nominees, Senate Republicans are engaged in a level of obstructionism never before seen in American history. Lawmakers have blocked various nominees over the years, but this is the first time ever in which a Senate minority has imposed a blockade on a president’s nominees to a federal bench without cause.
The question now is whether Democrats intend to tolerate such an unprecedented abuse of the institution. Greg Sargent reported yesterday, and the New York Times confirms today, that Senate Majority Leader Harry Reid (D-Nev.) has seen enough – he’s not only prepared to pursue the “nuclear option”; a senior Senate Democratic leadership says Reid may act “as early as this week.”
At a presser today, Reid told reporters he was taking another look at rules reform, but didn’t give a timeline. The senior leadership aide goes further, saying it’s hard to envision circumstances under which Reid doesn’t act.“Reid has become personally invested in the idea that Dems have no choice other than to change the rules if the Senate is going to remain a viable and functioning institution,” the aide says. That’s a long journey from where Reid was only 10 months ago, when he agreed to a toothless filibuster reform deal out of a real reluctance to change the rules by simple majority. Asked to explain the evolution, the aide said: “It’s been a long process. But this is the only thing we can do to keep the Senate performing its basic duties.”
There’s been some speculation that Senate Republicans might be willing to cut some kind of deal – Democrats can confirm one or two D.C. Circuit nominees, but Republicans will insist on leaving some empty slots vacant because they say so. In other words, the Senate minority may graciously allow the chamber to perform some basic, constitutionally mandated tasks, but only if Democrats agree to reject a qualified nominee or two.
Greg’s source added, “I don’t think that’s going to fly.”
Part of the larger challenge has been securing the necessary number of votes to pull this off. Step one was convincing Harry Reid that the “nuclear option” is now a necessity; step two was convincing the rest of the Senate Democrats, some of whom have balked in the recent past.
The Majority Leader wouldn’t need his entire caucus, but he’d need nearly all of them. There are 55 members in the majority – 53 Democrats and 2 independents – and for the “nuclear option” to work, the vote would need a 51-vote majority.
Thankfully for proponents, Republican obstructionism has reached such unprecedented radicalism that Democrats who were skeptical have been pushed into the reformers’ camp. Sen. Dianne Feinstein (D-Calif.), for example, has long been reluctant to support the change, but announced yesterday that she’s changed her mind – “unconscionable” Republican tactics have led her to support the “nuclear” tactic.
I have not yet seen a firm vote count on this, but rumor has it that Sens. Joe Manchin (D-W.Va.), Max Baucus (D-Mont.), Carl Levin (D-Mich.), Chris Coons (D-Del.), and Claire McCaskill (D-Mo.) are not yet on board, with Levin, who is retiring next year, maintaining his role as the fiercest opponent of the change.
Remember, the three most recent Senate Republican filibusters were arguably the most brazen in American history. They blocked votes on qualified jurists, not because of the nominees’ records or background, but because the Senate minority disapproves of the president who nominated them. It’s left the Democratic majority with a choice: act on the “nuclear option” to restore the Senate confirmation process to the way it used to work, or allow a minority of the Senate to hijack the judicial nominating process for reaasons even GOP senators themselves can’t defend.
For those who’ve followed this debate, it’s no doubt tiresome to see the Senate inch towards the line without ever crossing it. The majority will proclaim, “No, really, this time we’re actually going to pull the trigger on the ‘nuclear option,’” but in the 11th hour, there will be some kind of deal and the parties will back down. Reid seems serious now, but will Democrats follow through this time? I have no idea.
But I can say that the level of obstructionism has reached a truly ridiculous, unprecedented, unsustainable level, which changes the trajectory of the debate.
* Update: It looks like Delaware’s Chris Coons is no longer among the skeptics: “It’s time to changes the rules for nominees.”