How Can It Get Worse?

The nuclear option won’t destroy the legislative process, it will simply stop Republicans from using filibusters as their weapon of mass obstruction.

WASHINGTON, DC - OCTOBER 13: Senate Majority Leader Harry Reid (D-NV) leaves the Capitol building on October 13, 2013 in Washington, DC. Congress continues to struggle to find a solution to end the government shutdown, which is currently in its 13th day. (Photo by Andrew Burton/Getty Images)
National Journal
Norm Ornstein
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Norm Ornstein
Nov. 26, 2013, 3 p.m.

So much has now been writ­ten about the fili­buster that one might think there is noth­ing more to say. Wrong! I do have some ob­ser­va­tions, about the Sen­ate lead­ing up to this change, and about the Sen­ate go­ing for­ward, that I hope will plow new ground — or at least use dif­fer­ent fur­rows.

First off, I view the ac­tions taken last week with some sor­row. I am not ex­ult­ant that the change took place the way it did. I have long been an ad­voc­ate not of re­mov­al of the fili­buster, but of fili­buster re­form; my main idea has been to shift the threshold from 60 votes needed to stop de­bate to 40 votes needed to con­tin­ue it — put­ting the onus where it be­longs, on the minor­ity, with an even more re­laxed threshold for ex­ec­ut­ive nom­in­a­tions.

But I would much rather have seen this im­passe re­solved the way it has been in the past, with a bi­par­tis­an agree­ment to break the lo­g­jam and ap­prove most of the pres­id­ent’s nom­in­ees, along with a re­turn to the 2005 stand­ard that fili­busters of nom­in­a­tions should be re­served for “ex­traordin­ary cir­cum­stances.” When it be­came clear that there was no chance of such a deal, I sup­por­ted Harry Re­id’s ac­tions.

It is true that both parties have used, and ab­used, fili­busters of ju­di­cial nom­in­ees in the past. A sharp in­crease in the use of fili­busters against ap­peals court judges — in­clud­ing what I de­cried then as the fool­ish fili­buster against the highly qual­i­fied Miguel Es­trada — led then-Ma­jor­ity Lead­er Bill Frist to pro­pose what his pre­de­cessor Trent Lott called the nuc­le­ar op­tion in 2005. I strongly op­posed it then, and breathed a sigh of re­lief when the “Gang of 14” — sev­en sen­at­ors from each side of the aisle — reached a com­prom­ise that ended up con­firm­ing such ex­treme judges as Janice Ro­gers Brown and Priscilla Owen and re­turn­ing the Sen­ate to the stand­ard of lim­it­ing fili­busters to ex­traordin­ary cir­cum­stances.

What changed? Mainly, Sen­ate Re­pub­lic­ans. In 2005, Lamar Al­ex­an­der, join­ing most of his col­leagues, said, “I would nev­er fili­buster any pres­id­ent’s ju­di­cial nom­in­ee, peri­od. I might vote against them, but I will al­ways see they came to a vote.” But since Obama moved in­to the White House, Sen­ate Re­pub­lic­ans upped the ante dra­mat­ic­ally, turn­ing the fili­buster in­to a routine weapon of mass ob­struc­tion.

On judges, the com­bin­a­tion of fili­bus­ter­ing even nom­in­ees who ul­ti­mately were con­firmed un­an­im­ously or near un­an­im­ously, just to soak more of the Sen­ate’s most pre­cious com­mod­ity, time, and of fili­bus­ter­ing not based on qual­i­fic­a­tions of the nom­in­ees but simply to keep slots from be­ing filled, is simply over any line. And it is far from the mor­al com­mit­ments made in the 2005-06 peri­od, and from the un­der­stand­ing reached this past Janu­ary that headed off more sweep­ing rules changes at the be­gin­ning of the 113th Con­gress. It was that vi­ol­a­tion that moved sen­at­ors long skep­tic­al of chan­ging the rules, like Di­anne Fein­stein, Bar­bara Box­er, and Max Baucus, in­to sup­port­ing Re­id’s move. And the un­con­scion­able block­age of the ex­traordin­ar­ily tal­en­ted and ex­per­i­enced Mel Watt from the hous­ing fin­ance agency was a clear, in-your-face de­fi­ance of Sen­ate comity.

There is an­oth­er point that has rarely been made. It is Sen­ate prac­tice, go­ing back a long way, to give sen­at­ors the abil­ity to re­com­mend or block nom­in­a­tions for fed­er­al dis­trict court va­can­cies in their states — us­ing what are called “blue slips.” Since Barack Obama be­came pres­id­ent, sev­er­al Re­pub­lic­an sen­at­ors have re­fused to re­com­mend any nom­in­ees for dis­trict court va­can­cies in their states, an­oth­er breach in fun­da­ment­al prac­tice.

The Sen­ate rules mat­ter, of course. But the rules are deeply in­ter­woven with Sen­ate norms. The need to achieve un­an­im­ous con­sent to move most any­thing, and the un­der­ly­ing need to get 60 votes for any­thing con­tro­ver­sial, in most cir­cum­stances, have pushed the Sen­ate to­ward col­legi­al­ity, to­ward the need to broaden co­ali­tions and move to the cen­ter. But if the norms are blown up, which is what Sen­ate Re­pub­lic­ans un­der Mitch Mc­Con­nell have done over the past five years — us­ing the rules not to build bridges but to con­struct dams — it be­comes al­most in­ev­it­able that the rules will change to ad­apt. Of course, it is not a one-way street; Re­id has too of­ten filled the amend­ment tree, deny­ing the minor­ity (and some­times rank-and-file mem­bers of his own party) op­por­tun­it­ies to amend bills. But that has noth­ing to do with con­firm­a­tions, and the weight of blame tilts heav­ily to the GOP side.

Secondly, un­like 2005, there were not sev­en Re­pub­lic­ans, or five, will­ing to come to­geth­er to reach a com­prom­ise. There were prob­ably two — Susan Collins, who com­mend­ably did not sup­port the fili­busters of the three nom­in­ees to the D.C. Cir­cuit, and John Mc­Cain, who cares about the tra­di­tions of the Sen­ate. The fact is that if there had been sev­en, they would have found sev­en will­ing part­ners on the oth­er side. There were not, leav­ing Re­id no real choice but to move.

Per­haps the oth­er Re­pub­lic­ans in the Sen­ate, in­clud­ing Mc­Con­nell, thought Re­id was bluff­ing and did not have the 50 votes he needed. But it was very clear to any­one watch­ing closely that he did — thus, my ex­plan­a­tion that Mc­Con­nell and his col­leagues pro­voked this ac­tion. Why? One reas­on is that Mc­Con­nell needs a more com­pel­ling tar­get to shore up his shaky reelec­tion po­s­i­tion. Obama­care is not enough in a state, Ken­tucky, where it is work­ing bet­ter than any­where else. Point­ing to the Demo­crats as an evil force tramp­ling on the Con­sti­tu­tion en­ables him to push at­ten­tion in a dif­fer­ent dir­ec­tion, giv­en that a tiny sliv­er of Ken­tucki­ans ap­prove of his role broker­ing the re­open­ing of the gov­ern­ment — he is the one stand­ing against the un-Amer­ic­an Demo­crats. And if Mc­Con­nell pre­vails, and if Re­pub­lic­ans con­trol the House, Sen­ate, and White House in 2017, he can blame Re­id and the Demo­crats when he re­moves all re­main­ing fili­buster road­b­locks.

On to the con­sequences. First, it is im­port­ant to note that the only change here is the threshold num­ber for clo­ture. All the oth­er ways sen­at­ors can delay ac­tion re­main in place, in­clud­ing deny­ing un­an­im­ous con­sent, re­quir­ing two days for a clo­ture pe­ti­tion to ripen, and de­mand­ing the full de­bate time after clo­ture, among many oth­ers. The hold, which is ba­sic­ally a no­tice by a sen­at­or that he or she will deny un­an­im­ous con­sent to move for­ward on a bill or nom­in­a­tion, is still there, al­beit with less po­tency. Will Re­pub­lic­ans use these weapons more than in the past? Sure. But if they over­use them, bring­ing the place to a screech­ing halt over even minor nom­in­ees for boards and com­mis­sions, Re­id will be temp­ted to change the rules again. That is a fairly po­tent de­terrent against melt­down.

As for holds, they will stay. All sen­at­ors use them and treas­ure them, as a way to grab the at­ten­tion of a White House or Cab­in­et of­fice that of­ten will just ig­nore their wishes or stone­wall their le­git­im­ate con­cerns. But now, holds will only ap­ply for a lim­ited time, with a sharp in­crease in the power of the Ma­jor­ity Lead­er to de­cide how long that time will be. If he wants to ac­com­mod­ate an in­di­vidu­al sen­at­or with a griev­ance against the pres­id­ent or a de­part­ment, he can sit on a key nom­in­a­tion for weeks or months. If he doesn’t, he can ig­nore the hold, even though it will still re­quire him to jump through some hoops to move a nom­in­a­tion to a vote. Ma­jor­ity lead­ers could al­ways ig­nore holds if they de­sired, but if they did so for minor­ity sen­at­ors, the minor­ity party would unite and sup­port a fili­buster. Now, he can re­ward friends and pun­ish en­emies more eas­ily. This real­ity, so far as I can tell, has gone com­pletely un­noticed by the cognoscenti. One caveat: If in­di­vidu­al reneg­ades like Ted Cruz de­cide to ab­use the hold pro­cess by put­ting them on every nom­in­ee, there will be some in­cent­ive to change the fun­da­ment­als of un­an­im­ous con­sent agree­ments, to re­quire more than one sen­at­or to block im­me­di­ate con­sid­er­a­tion of nom­in­a­tions, at least. In­deed, Lott and Tom Daschle pro­posed just this in The Wash­ing­ton Post. But for now, the hold will re­main, be­cause it suits all sen­at­ors and it em­powers Re­id.

Does this mean few­er mod­er­ate and more ex­treme judges? This was a point made by my friends Ruth Mar­cus and J. Har­vie Wilkin­son, who is a true role mod­el as a judge. When Chuck Grass­ley, who made a habit of taunt­ing Demo­crats on the Sen­ate floor on this is­sue, threatened that if Re­id pulled the trig­ger, there would be more judges like Scalia and Alito, I laughed. We got Scalia, Thomas, Alito, Janice Ro­gers Brown, Priscilla Owen, and many oth­ers without any fili­buster change! And if the rules had not changed and the Re­pub­lic­ans elec­ted a pres­id­ent with a Re­pub­lic­an Sen­ate in 2016, I am sure we would see a steady march of Fed­er­al­ist So­ci­ety-ap­proved arch-con­ser­vat­ives nom­in­ated. We may see a few more judges nom­in­ated un­der Obama who are left of cen­ter, but I doubt ser­i­ously that he will try to flood the courts with rad­ic­als. All three nom­in­ees for the D.C. Cir­cuit are well with­in the main­stream. And a tilt ser­i­ously to the left would res­ult in de­fec­tions from Mark Pry­or, Joe Manchin, Mary Landrieu, and enough oth­er mod­er­ate and con­ser­vat­ive Demo­crats to make the nom­in­a­tions prob­lem­at­ic.

What about le­gis­la­tion? Will Re­id’s move — as Olympia Snowe, among oth­ers, fear — add to the hy­per­par­tis­an­ship and des­troy the le­gis­lat­ive pro­cess? No. As Re­id said, how could it get worse? Here is the real­ity: Any le­gis­la­tion that Mc­Con­nell and his col­leagues saw as not in their polit­ic­al in­terest was not go­ing to pass, peri­od. Any le­gis­la­tion that passed with a hand­ful of Re­pub­lic­ans was not go­ing to make it through the House, be­fore or after the nuc­le­ar op­tion. Some le­gis­la­tion, like im­mig­ra­tion re­form, that passed the Sen­ate with su­per­ma­jor­it­ies, was not go­ing to make it through the House.

Be­fore and now, if there is le­gis­la­tion that Mc­Con­nell and his col­leagues see as in their polit­ic­al in­terest, they will vote for it, peri­od. Does any­body ser­i­ously think that Mc­Con­nell will kill a farm-bill deal, if one is ever reached, be­cause he wants to protest Re­id’s rules change? Will he block a tough new sanc­tions bill on Ir­an be­cause of the new at­mo­sphere in the Sen­ate? Block a budget con­fer­ence deal and bring the gov­ern­ment to a halt? Block ul­ti­mate pas­sage of a de­fense au­thor­iz­a­tion bill? No, no, and no.

Per­haps some smal­ler-bore le­gis­lat­ive ini­ti­at­ives will die. But the 113th Con­gress was well on the way to sur­pass­ing the 112th as the most do-noth­ing Con­gress in our life­times long be­fore the nuc­le­ar op­tion. Noth­ing, sadly, has changed — ex­cept the abil­ity of a pres­id­ent to staff his own ad­min­is­tra­tion and to fill long-stand­ing va­can­cies in the ju­di­ciary.

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