Senate Majority Leader Harry Reid went nuclear Thursday, leaving the U.S. Capitol a smoking pile of radioactive rubble and laying waste to America’s capital city and blanketing the beltway in glowing dust.
Not really. But Reid and Senate Democrats did make a historic change to the Senate rules in order to bypass Republican obstruction. Often referred to in beltway slang as “the nuclear option,” the rule change puts the kibosh on repeated attempts by Republicans to prevent Obama from staffing his administration or appointing judges to the federal bench. Supreme Court nominees can still be filibustered–but it’s likely that any majority party whose nominee was blocked would simply change the rules again.
“The American people believe Congress is broken. The American people believe the Senate is broken,” Reid said Thursday as he prepared to kill the filibuster. “And I believe the American people are right.”
Democrats may regret the day they changed the Senate rules. But if they hadn’t changed them, regret would have been a certainty. Federal judges have the ability to cement or frustrate an administration’s long-term legacy, so Thursday’s rule change was a major win for Democrats, one that could change the shape of the federal judiciary and American law in the process.
Influencing the federal bench is by no means easy–one party still has to control the Senate and the White House, and just ask Mitt Romney or Mitch McConnell how difficult that is. For judicial nominees, however, the filibuster is dead, and a simple majority vote in the Senate will now suffice.
Both parties actually reached an agreement months ago to streamline the confirmation of Obama nominees, a pact Reid said Republicans have breached with their recent and repeated obstruction of nominees to the influential DC Circuit court. Republicans have flatly opposed Obama nominating any judges to the court, seeking to preserve the court’s conservative tilt. Iowa Republican Sen. Chuck Grassley even suggested eliminating seats on the DC Circuit to prevent Obama from filling them.
“Republicans simply don’t want President Obama to make any nominations to this vital court,” Reid said before the vote. “None! Zero!” The DC Circuit has jurisdiction over a number of key regulatory matters–which means that it has a lot of influence over how much of the Obama administration’s accomplishments survive legal challenges. Obama’s three most recent nominees to the DC Circuit were all filibustered by Republicans. With the rule change, their confirmation is all but assured.
“This is nothing more than a power grab,” Senate Minority Leader Mitch McConnell said after the vote. “They broke the Senate rules in order to exercise a power grab.”
Opposing Reid’s attempt to kill the filibuster for executive and judicial nominations, Republicans were left making a number of contradictory arguments–that the rule change was both a “distraction” from the failure of the president’s health care law and an nefarious attempt to implement his regulatory agenda, a naked “power grab” but one Republicans will likely preserve if they retake the Senate.
McConnell accused Democrats of “pioneering” the obstruction of judicial nominees. Though Democrats certainly made use of the filibuster during the Bush years, since Obama took office the filibuster has been deployed even more frequently. When Bush was in office, many still-sitting Republican senators argued that the filibuster was unconstitutional — including McConnell.
Back then, McConnell complained that Democrats were trying to “reinterpret the Constitution to require a supermajority for confirmation.” On Tuesday, he argued that if Americans wanted Obama to appoint judges or staff his administration they would have given him a supermajority.
Democrats have grumbled about changing the filibuster rules for years, but only recently have almost all Senate Democrats been on board.
In a mocking speech in which McConnell told the Senate he had received a letter from a man who signed up his dog for health insurance coverage under the Affordable Care Act, McConnell accused Democrats of trying to “cook up a fake fight over judges” to distract from problems implementing the president’s signature health care law.
“[Obama] might as well have said if you like the rules of the Senate, you can keep them!” McConnell said.
But that bravado faded as it became clear Democrats were serious this time. Mitch McConnell got cold feet when he saw Democrats had enough votes to nuke the filibuster. He tried and failed to force the Senate into a recess, presumably to see if he could talk Reid into taking his finger of the button. Democrats didn’t bite. With only a majority of the Senate needed to make the rule change, the proposal passed even with three Democrats, Senator Carl Levin of Michigan, Joe Manchin of West Virginia, and Mark Pryor of Arkansas voting against.
Republicans have warned that altering the Senate rules to make it easier for Obama to make appointments would come back to bite Democrats if the GOP ever retakes the Senate. But the same is true of allowing Republicans to prevent Obama from filling vacancies on the federal bench, vacancies that a Republican president would then be able to fill, skewing the judiciary even further to the right.
As he left the chamber Thursday afternoon, Arizona Republican Senator John McCain warned that Democrats “will pay a heavy, heavy price” for altering the Senate rules. But if Republicans had taken back the Senate and the White House and found an empty federal bench waiting for them, the price of not acting would have been even higher.
This post has been updated.
Adam Serwer