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.

Reuters

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  • So much has now been written about the filibuster that one might think there is nothing more to say.

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  • I view the actions taken last week with some sorrow. I am not exultant that the change took place the way it did.

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  • It is true that both parties have used, and abused, filibusters of judicial nominees in the past.

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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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Norman J.
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