Appointment reform

[TimothyC]

WASHINGTON — Senate Majority Leader Harry Reid, D-Nev., pushed through a controversial change to Senate rules Thursday that will make it easier to approve President Obama's nominees but threatens to further divide an already polarized Congress.

Fifty-two Senate Democrats and independents voted to weaken the power of the filibuster. The change reduces the threshold from 60 votes to 51 votes for Senate approval of executive and judicial nominees against unanimous GOP opposition. Three Democrats — Sens. Mark Pryor of Arkansas, Joe Manchin of West Virginia and Carl Levin of Michigan — opposed the change.

The rule change does not apply to Supreme Court nominees, who are still subject to a 60-vote filibuster threshold, or to legislation.

"The American people believe Congress is broken. The American people believe the Senate is broken. And I believe they are right," Reid said Thursday on the Senate floor. "The need for change is so very, very obvious."

The turning point in the decades-long debate over Senate filibuster rules was Republicans' decision to block all three of Obama's latest nominees to the U.S. Court of Appeals for the District of Columbia Circuit, the nation's second-most-powerful court with vast jurisdiction over federal agencies and regulations.

The court currently has four judges appointed by Republican presidents and four by Democrats, with three vacancies. But six "senior" judges, five of them Republican nominees, tilt the court to the right. Republicans claim no more judges are needed, basing their opposition on workload, not the qualifications of Patricia Millett, Nina Pillard and Robert Wilkins.

"I've sat on the Judiciary (Committee) for 20 years and it has never, ever been like this. You reach a point where your frustration just overwhelms and things have to change," said Sen. Dianne Feinstein, D-Calif., who had previously opposed efforts to change filibuster rules but voted with Reid on Thursday. "I think the level of frustration on the Democratic side has just reached the point where it's worth the risk."

Democrats control the Senate 53-45 — and two independents generally side with them — but the majority is at stake in the 2014 elections. Republicans warned that it would not only tear apart cross-party relationships in the Senate, but it will come back to haunt Democrats if they return to the minority. "You will no doubt come to regret this, and you may regret it a lot sooner than you think," Senate Minority Leader Mitch McConnell, R-Ky., warned Democrats. McConnell would not comment when asked whether he would maintain the rules change if he were majority leader.

Sen. John McCain, R-Ariz., called the decision "foolish" and squarely blamed junior Democratic senators. "There are members that have never been in the minority who have been here a short time who basically drove this," he said.

Just 22 members of the Democratic caucus were in the Senate before 2006, the last time Republicans were in the majority.

Sen. Tom Udall, D-N.M., an advocate for filibuster changes who was elected in 2008, hailed the change as a vehicle to make Congress more productive. "Americans sent us here to get things done, but in recent years, the minority has filibustered again and again — not to slow action out of substantive concerns, but for political gain. Any president — Democrat or Republican — should be able to make their necessary appointments," he said.

President Obama and Vice President Biden, both former senators, applauded Reid's decision. "A deliberate and determined effort to obstruct everything, no matter what the merits, just to re-fight the result of an election is not normal, and for the sake of future generations, we can't let it become normal," Obama said Thursday.

The rules change is informally referred to as the "nuclear option" because it blows up long-standing Senate procedure and protection of minority rights. It is the most far-reaching change to filibuster rules since 1975, when senators eased the two-thirds requirement for ending filibusters to today's three-fifths requirement of 60 votes.

"I think the minority will rue the day that they broke the rules to change the rules," said Sen. Susan Collins, R-Maine, who said she and a group of bipartisan senators tried unsuccessfully this week to head off Reid's decision with a compromise on nominations.

Progressive groups cheered Reid's move. "This was not a decision made easily or taken lightly. There was no choice. The Republican minority had turned the existing rules into weapons of mass obstruction," said Alliance for Justice President Nan Aron.

Conservative groups said it would undermine minority rights in Congress. "For Harry Reid and President Obama, this is not about a couple circuit court judges; this is an attempt to remake America to reflect their unworkable and unpopular progressive vision," said Michael Needham of Heritage Action, which urged senators to oppose the rules change if it comes to a vote. "If Reid and his colleagues continue down this path, they will set a precedent that fundamentally alters the role of the minority in American politics."

Contributing: The Associated Press

The D.C. Circuit Court of Appeals has outsize influence reviewing many of the cases involving federal administrative agencies, and four of the nine Supreme Court Justices have served on the court. The eight active judges on the court are split evenly by party ideology, although Republicans appointed five of six senior status judges, who sometimes hear cases.

The Republicans, taking a page from the Democrats’ playbook during the Bush Administration, say the filibusters aren’t due to the candidates’ qualifications, but because they believe the court is underworked. “That was exactly the position of the Democratic Senators in 2006 and 2007,” said Sen. Lamar Alexander (R-Tenn.) on the chamber floor Wednesday. Indeed, a 2006 letter signed by Democratic Senators on the Judiciary Committee—including Vice President Biden and current Sens. Chuck Schumer (D-NY), Patrick Leahy (D-VT), Dick Durbin (D-Ill.), Diane Feinstein (D-Calif.)—argued that they should debate the necessity of filling an 11th seat before turning to President George W. Bush‘s nominee Peter Keisler.

In their letter, the Democrats quoted Republican Senators who had previously supported the position that the court did not need 11 judges—including Jeff Sessions (R-Ala.) and Chuck Grassley (R-Iowa)—in 1997.

But the Democrats and Republicans believe this time is different. Democrats have grown exasperated by the slow nomination process, which is in part due to Obama’s slower than usual submissions. Democrats ire, however is naturally on Republicans: besides the three court nominations, Republicans earlier this month blocked the nomination of Rep. Mel Watt (D-N.C.) to the Federal Housing Finance Agency.

What was it that was said eight years ago?

AND THIS IS EXACTLY WHAT THE FILIBUSTER DOES.
IT ENCOURAGES MODERATION AND CONSENSUS.
IT GIVES VOICE TO THE MINORITY SO THAT COOLER HEADS MAY PREVAIL.

Congratulations Senator Reid, you've fired the gun, and shot the next Democrat minority leader in the senate in the foot.

And yes, the republicans are being hypocritical, but no more than the Democrats!

[Pint0 Xtreme]

I might sound crazy but I am of the opinion that the winning elected party should be able to set the legislative agenda. Also, I think the title needs fixing to better reflect the contents of the post.

[Thanas]

Title edited.

I have to say I find it funny how the victorious party in the election is unable to fill the posts they need to govern simply because the other party refuses to appoint or confirm anybody.

[TimothyC]

I have to say I find it funny how the victorious party in the election is unable to fill the posts they need to govern simply because the other party refuses to appoint or confirm anybody.

Governing is still going on for the most part, it's just that the minority party in the senate is acting as a break on the majority - as it should be. This is similar to the situation in 2005, so I presume you found that funny also? As for the title, it was accurate, if non-descriptive (for those that didn't see it, the original title was "Ried shoots gun, hits successor's foot" and by successor, I meant successor to the leadership of the democrats in the senate).

[Lord MJ]

In Obama's presidency, the fillibuster has been taken to unprecedented and untenable heights. What's worse is that the Dems in general since 2006 have been willing to bend over for the GOP frequently.

Harry Reid himself has been the roadblock to any kind of changes to the filibuster rules. We've had this confrontation at least three times in the Senate this year. Both parties have used the fillibuster, but their is such a thing as judicious restraint. That restraint seems to be gone with the current crop of Republicans, where it is now generally accepted that you have to get 60 votes to pass any legislation. In past, even with the fillibuster, needing 60 votes was the exception not the norm.

Personally, I would not be surprised if this is the outcome the GOP wanted. The Dems pushed to the point that they had to use the nuclear option, so it would be that much easier for the GOP to push the Dems to the side when they take control. I would not be surprised at all that this was planned in advance by the GOP as part of a strategy to win out in the long term.

[Mr Bean]

I have to say I find it funny how the victorious party in the election is unable to fill the posts they need to govern simply because the other party refuses to appoint or confirm anybody.

Governing is still going on for the most part, it's just that the minority party in the senate is acting as a break on the majority - as it should be. This is similar to the situation in 2005, so I presume you found that funny also? As for the title, it was accurate, if non-descriptive (for those that didn't see it, the original title was "Ried shoots gun, hits successor's foot" and by successor, I meant successor to the leadership of the democrats in the senate).

TimothyC you full well know that the blocks are on ALL appointments, not the ones the Republicans disagree with. How many stories now have we heard about Obama nominating Regan and Bush I era judges for higher posts and still having those nominations delayed for months? How many times do we see spots go unfilled for a year or more only for that person to finally come up for a vote and pass by a vote of 94 to 1?

This is not the same, the power exists for the minority to stop new legislation not shut down the courts for lack of judges?
You may vote yes, or you may vote no, but to have the option of not even voting at all is anathema to democracy.

TimothyC keep in mind this vote only removed the filibuster for nominations They can still filibuster for their hearts content legitimation.

[Terralthra]

Really, all that needed to be done to reform filibusters was to revert the rule allowing silent filibusters. I'm fine with you filibustering a cloture motion, if you get up there and talk until either you run out of stamina or the cloture vote can get 60 votes. Silent filibusters allow someone in the minority party to require a 60-vote majority instead of simple majority on a whim, meaning why wouldn't you filibuster everything to which you are opposed?

Federalist Paper #58 addresses directly why requiring 60 votes to do anything is a bad governance.

[Lord MJ]

I remember the situation in 2005, a few contentious nominees, and the Dems fillibustered. The nuclear option was threatened. But a deal was reached. Things settled down after that. Dems realized the just can't fillibuster everything just because, GOP realized they just can't ram through any nominee they wanted. Maturity actually was demonstrated by both sides. In this situation, not so much.

[Alyrium Denryle]

Really, all that needed to be done to reform filibusters was to revert the rule allowing silent filibusters. I'm fine with you filibustering a cloture motion, if you get up there and talk until either you run out of stamina or the cloture vote can get 60 votes. Silent filibusters allow someone in the minority party to require a 60-vote majority instead of simple majority on a whim, meaning why wouldn't you filibuster everything to which you are opposed?

Federalist Paper #58 addresses directly why requiring 60 votes to do anything is a bad governance.

Exactly. The silent fillibuster is a load of bullshit. There is no cost, so the opposition fillibusters everything requiring a 60 vote supermajority to get anything done. Fuck that. Want to fillibuster? Well, you get to read from the dictionary for 20 hours before passing the baton to another senator who has been taking notes, and then reads the thesaurus entries on the words you read from the dictionary etc. We will even be nice and let you sit while talking, and permit people to bring in coffee, water, and permit bathroom breaks with you keeping the floor in the interim.

[Crossroads Inc.]

God I am so SO Happy the Dems finally grew a pair and dropped the bomb on the "Nuclear option".
I fully understand the importance of ""Encouraging moderation and consensus" and "Giving a voice to the minority"

But lets be fucking honest. The Far Right have no fucking plans at ALL of any sort of "consensus" when it comes to Obama.
Right now Obama has had more nominees upheld than ANY OTHER President in US History.
Want to know who had the second most? Bush? Reagan? Nope... Clinton....

[B5B7]

It is interesting what the Republicans quoted in the OP article said. They admitted that if this reform occurred, then when they became the majority they would abuse it. In other words, they were saying that you couldn't trust them. That would be a good reason that Americans shouldn't let them achieve majority.

[Simon_Jester]

Do we know if there is a list of blocked appointees anywhere?

On another note, ending filibusters on appointments is harder to abuse than on most other things, because for it to be abused effectively, you need the president and Senate to be from the same party. Me, I don't think the Republicans are going to be winning presidential elections for a while if they don't learn to moderate their positions, so I'm not sure there's much of a threat in the short term.

Right now, the Republican strategy relies on their 2016 nominee being able to run against Obama the way Obama ran against Bush. Somehow I don't think Obamacare is going to be that unpopular.

[Grumman]

I might sound crazy but I am of the opinion that the winning elected party should be able to set the legislative agenda. Also, I think the title needs fixing to better reflect the contents of the post.

I like the concept of requiring a supermajority to pass legislation, even if it's just 50%+5, because a straight majority has the potential to be extremely volatile. You don't want to turn the country on its head every time you go from 49-50 to 50-49, so requiring 45 votes to stop a law being passed but 55 to repeal it would create a tendency towards stability.

This reasoning obviously does not apply to appointments because there the status quo is to have somebody in the position, so a ten point buffer where nobody can get the job would make little sense there.

[Crossroads Inc.]

The thing about the filibuster is that it was put into place to prevent abuse by the MAJORITY party in power.
This usually means the majority party putting forth extreme and contentious candidates that the other side wants to block because they feel it would harm the judicial system.

The GOP however has blocked virtually EVERY Candidate, often ones it later goes on to vote FOR almost unanimously.

I totally agree with B5B7 that by saying "You'll regret this!!!" They are basically saying they will go out of their way to put for nominations that the other side would WANT to filibuster, IE, extreme ideologues.

[Thanas]

Do we know if there is a list of blocked appointees anywhere?

Yes. Broad overview sorted by department:
http://projects.propublica.org/tables/plum-book

Here is a more detailed list listing them by name but it is very hard to sift through due to shitty White House website design.
http://www.whitehouse.gov/briefing-room ... pointments

[Ahriman238]

A filibuster is a useful check on the majority, but not when it's used for every candidate, every bit of legislation, as is increasingly the case.



So if we want to reform the process, let's have people put their money where their mouth is and stand up to speak.

[Lord MJ]

Mitch McConnell threatened either now or a few months ago the last time this fight happened is that if the Republicans ever got back into control of the Senate, he would end the Fillibuster completely. That includes SCOTUS nominees and all legislation. That's what I think he meant when he said "You'll Regret this."

The GOP believes my the Dems making this rule change, then the GOP now has carte blanche to make whatever they want if they ever get back into power.

[aerius]

The Dems are essentially betting that they won't someday be in a position where they'll want or need to use the current filibuster rules. Short term, they'll likely win that bet. Long term, well, I don't think they've considered the long term. Could be fun if Obamacare ends up being as big of a clusterfuck as I think it'll be and the GOP can capitalize on it and take back the Senate.

[Ritterin Sophia]

What was it that was said eight years ago?

AND THIS IS EXACTLY WHAT THE FILIBUSTER DOES.
IT ENCOURAGES MODERATION AND CONSENSUS.
IT GIVES VOICE TO THE MINORITY SO THAT COOLER HEADS MAY PREVAIL.

Except that's not true at all, the filibuster doesn't do anything except give the minority party a free and easy way to obstruct governing with no downside on their part. They don't have to stand up and defend their actions, they don't even have to identify themselves, so even the threat of filibuster becomes a de facto filibuster. It does the exact opposite and only encourages pointless partisan ideologues to intentionally cause the government to grind to a halt. The filibuster was created under the assumption that both parties would be interested in a functional government, not a party that wants to destroy it.

[SirNitram]

The Dems are essentially betting that they won't someday be in a position where they'll want or need to use the current filibuster rules. Short term, they'll likely win that bet. Long term, well, I don't think they've considered the long term. Could be fun if Obamacare ends up being as big of a clusterfuck as I think it'll be and the GOP can capitalize on it and take back the Senate.

Exactly WHAT would happen that is different? They rammed through blatantly partisan appointees.

[Gaidin]

I think they have considered the long term fairly well considering it took them something like four years to reach this decision if you give them a year into the current Presidency to have anyone even consider the option. The thing is that this is hardly the first time rules for the filibuster were changed because nothing was getting done or someone was afraid nothing was going to get done. There was the cloture vote, then the 3/5ths vote, and then this. We're not exactly walking into unprecedented territory. We're just walking into territory where no negotiation happens. It was bound to happen eventually. And that's the difference between the Democrats and the Republicans. When the Democrats used it in the past decade, they were willing to negotiate. When the Republicans have used it in the past few years, there was next to no back and forth, and this was the straw that broke the camel's back. McConnel should've seen it coming when the threat came and the line in the sand was drawn and should've let the three nominees through. Now Obama can fill all 93 posts and they might be waiting quite a while to really abuse that lack of a filibuster but for retiring judges. If the Republicans try to do more should they get the Senate it doesn't really hurt the Democrats because they used it so comparatively little that now you're just poking back instead of giving their main government stalling weapon a swift kick to the balls.

Sure, the tea party in the Senate can do something, maybe, should the Republicans get the majority. But then, the object lesson they haven't really learned is that the Senate isn't gerrymandered. How extreme can they really get? Sure they can do it at first, but hell, if you get too extreme too quickly, even Cruz might get kicked out of office in his first bid for reelection. Do the extremists and showmen like Cruz for the most part even really have the patience to sit down and put together a bill and play the back and forth of the Senate like they'd need to anyway? Or do they just want to be the extremist showmen they seem to be?

[Alyrium Denryle]

AND THIS IS EXACTLY WHAT THE FILIBUSTER DOES.
IT ENCOURAGES MODERATION AND CONSENSUS.
IT GIVES VOICE TO THE MINORITY SO THAT COOLER HEADS MAY PREVAIL.

That was true eight years ago, when the minority party acted in good faith, and primarily used the fillibuster to make sure Bugfuck Crazy was not appointed to the SCOTUS and other federal courts. Now, it is being used to block all appointees on general principle, and all legislation on general principle. I will note that the GOP threatened to use the Nuclear Option much sooner (in terms of how long they tolerated use of the fillibuster to block their agenda), by the by.

I would not have an issue with the fillibuster if the minority party had to expend actual effort. Having to read from the dictionary or phone book when they ran out of arguments, and keep the day's session convened by continually yielding to the next in line so as to bore the majority to death/exhaust them was OK, because they had to pick and choose which nominees or legislation they want to hold up in that fashion. Now, because they dont need to hold the senate floor continuously, they pay no cost, thus there is no impediment on their ability to block Everything.

Also: the party that gerrymandered its way into a house majority they should not have going by the actual vote proportions does not have standing to complain. Ever.

[Covenant]

Appointments are the sort of thing that deserve to be made, and ideally with consensus and support from the whole body, but the way the fillibuster is being used now you cannot distinguish an extreme candidate from a perfectly acceptable moderate one. Leaving spots vacant looks sloppy and reduces the efficiency of government. This is bad for governance and it makes the entire government structure look useless, which the Republicans then point to as an example of why government does not work.

Changing this doesn't revolutionize the process or remove the need for broad consensus, but it does reduce it closer to a simple majority. You still cannot ram through insane candidates from one side or another, presumably a moderate body of a party would disapprove of a bad candidate, but the way it's been working you couldn't get anyone entered whatsoever. That's just bad for everyone.

If it means that we get more Republican Judges in the future then, eh, well that's the fault of the Democrats for failing to maintain a majority standing I suppose. I don't think the Republicans will continue to be politically relevant in the future if they don't moderate their stance on certain issues, but if they can moderate and come back from behind then... isn't that what the process is supposed to encourage? There's still plenty of room for the minority to have their voice heard and oppose candidates, but until we have a 5-party system or a release on the death-grip that parties exercise over their Senatorial votes it only makes sense to make it easier for simple stuff like appointments to still get done when a majority want to get things done.

[Simon_Jester]

Now Obama can fill all 93 posts and they might be waiting quite a while to really abuse that lack of a filibuster but for retiring judges.

Honestly, losing the filibuster doesn't do the Republicans a damn bit of good unless they hold both the White House and the Senate. I think at the moment, the Republicans don't have a reliable way of winning both those things.

As I noted, it is going to be very hard for them to win the 2016 election at this rate. There's no reason to think their nominee-selection process has gotten any better, so they'll be hard pressed to put up a candidate better than Romney. Romney didn't win. Meanwhile, the Republicans in Congress are going to predictably spend the next three years providing more reasons for Americans to not want them in office.

They're hoping they can decisively win by campaigning against Obamacare, but the election is three years from now and I suspect that for better and for worse, Obamacare will not be at the forefront of American minds by then. Meanwhile, they're painting a huge target on their backs for the Democrats to exploit- because the 2016 Democratic nominee will be able to run against the asinine harassment and fanaticism of Congressional Republicans.

And as you observed, the Republicans also face an uphill battle in regaining the Senate. They MIGHT get temporary control in 2014 when the senators elected in 2008 come up for re-election. But 2016 will be the turn for all the first-term Republican senators elected in 2010... several potential targets on that list who should be worrying; Pat Toomey comes to mind. Ron Johnson from Wisconsin is a Tea Party senator who beat Russ Feingold by a relatively thin margin of 2% in 2010- he may not do so well this time.

Other Republican senators like DeMint and Coburn are up for re-election in 2016, but at least have a good chance of victory coming from solidly red states.

[Elfdart]

This is about 20 years late and several trillion dollars short, since the Republicans pulled the same stunt with Clinton over and over.

Elections should have consequences. Any Senate rule that makes the vote of a senator from one state more valuable than that of a senator from another state makes a mockery of representative government. The filibuster, like the Gag Rule, is a holdover from the days of Slave Power -when members of Congress from slave states pulled one rule after another out of their asses to gum up the works. What George Mitchell should have done in 1993, and what Harry Reid should have done in 2009 is what Speaker Thomas Reed did over a hundred years ago to stop the obstruction* in the House: Announce that a quorum being present, votes will be held immediately, them having the door barred so no one could leave.

*Back then, one way Dixiecrats used to gum up the works was by not answering the roll, denying the quorum needed to vote on a bill they didn't want to get an up-or-down vote. Reed counted every representative who was in the chamber as present, whether they answered roll call or not. When one of the congressmen who refused to answer objected, Reed responded:

"The Chair is making a statement of fact that the gentleman from Kentucky is present. Does he deny it?"