How going nuclear unclogged the Senate
By: Burgess Everett
August 22, 2014 05:03 AM EDT
The Senate barely does anything these days — except approve judges that could shape the law for a generation.
Since Majority Leader Harry Reid (D-Nev.) changed Senate rules in November to ease President Barack Obama’s approval of most nominees, Democrats have churned through confirmations of dozens of new judges — giving them lifetime appointments that will extend the administration’s influence for years to come. Over a roughly equivalent period during the 113th Congress, the Senate confirmed 36 district and circuit judges before the rules change and 68 after, according to Senate statistics.
Republicans have fought Democrats at every step, using their remaining procedural tools to stymie quick approval of judges and many executive branch nominees whose sway over regulations are magnified by today’s congressional stalemate. But the days of epic confirmation fights are over now because all nominees — save for those to the Supreme Court — need only a bare majority for approval after Democrats used the unilateral “nuclear option” to change the rules.
Now, Obama is catching up to the judicial confirmation records of his immediate predecessors and recasting the balance of the courts. Far more important than the minuscule number of major new laws this Congress, Democrats say, will be the installation of liberal-leaning justices up and down the bench.
“The rules change has made a huge difference,” said Marge Baker, a vice president at People for the American Way. “The legacy of this Congress has been the impact that the president and the Senate have made with judicial vacancies.”
Asked for a retrospective reaction to the rules change of nine months ago, Americans United for Change President Brad Woodhouse answered: “If the question is whether I would want to see it done again: Yes, yes, yes, yes, yes, yes.”
“We have cleared a backlog of judges and addressed judicial emergencies. I think that’s important as a Democrat, as someone that wants to see more judges appointed by this president,” he said.
Democrats also admit there have been serious consequences to gutting the filibuster. Republicans say the change instantly “chilled” the lawmaking climate, and it’s hard to argue with them. After a cooperative first half of 2013, the Senate has fallen into a legislative deep freeze.
And Democrats have faced retribution from the GOP, exemplified by Sen. Mike Enzi (R-Wyo.) citing “nuclear option” as Republicans’ reason for blocking a raft of Obama’s ambassadorial choices before the Senate recessed for August.
In pre-nuclear days, the Senate might have unanimously approved a group of new ambassadors to global conflict zones or lower level judges before skipping town — but those days are over. Senate Republicans have shown no indication they will relent on their demand for procedural votes on most nominees that are guaranteed to be OK‘d by Democrats only hours later, a practice that slows the Senate to a crawl.
“We’ve been successful in doing that so far,” said Sen. Chuck Grassley of Iowa, the GOP’s top gun on judicial issues. “I’ve suggested it and the caucus has backed it up.”
Given the complexity of Senate process and politics, everyone has their own take on the nuclear effect. Confirmation rates are up but nominations still plod toward approval. Republicans have consistently voted in a manner that would have blocked nominees under the old rules, but it’s impossible to say which votes were made in protest of the rules change and which protested an individual nominee.
Democratic aides and researchers argue there are at least 20 key judicial and executive nominees that would have been blocked by the GOP or at least delayed for months before November. In their eyes, Jeh Johnson would not be Homeland Security secretary, IRS chief John Koskinen would still be waiting for a vote and former Rep. Mel Watt (D-N.C.) would still be in Congress, not leading the Federal Housing Finance Agency.
“Unquestionably things had to change,” said Stephen Spaulding, a counsel for Common Cause, a member of a coalition called Fix the Senate Now.
Republicans don’t dispute that some key nominees would have been defeated under the old rules. Instead they highlight changes in balance of power: The Senate had long stood as a counter to the president; now the chamber processes Obama’s choices with little scrutiny.
“It’s empowered Obama and has taken power away from elected representatives that could offer a check on Obama,” said a Senate Republican aide.
And the GOP argues the Senate is far less efficient than a year ago. Each nomination saps an hour or more of the Senate’s time, leaving the chamber in the boring, empty posture of a quorum call as Democratic leaders run out the procedural clock on each nominee.
Now the same left-leaning groups pushing the rules change last year have another complaint: Reid didn’t go far enough. They want to require the GOP minority to execute talking filibusters on the Senate floor and do away with the so-called secret hold that slows the floor down. They call this reform “Use it or lose it.”
“If these rules are designed to have debate, then you have debate. If you don’t have anything to debate, it shouldn’t be just delay,” Baker said.
There’s no indication Democrats have serious plans to change the rules further, though Reid seems to take special pleasure in wielding the threat.
“Maybe we may get into a little more rule changing, don’t ya’ think?” Reid told thousands of Nevada steelworkers in mid-August.
That’s unlikely to happen this year or next given Democrats’ slim prospects for having sufficient support with a narrow majority that would include Joe Manchin of West Virginia and, if he wins reelection, Mark Pryor of Arkansas. They both opposed last year’s change.
Instead, Democrats are eyeing the short time left on the legislative calendar, looking to further run up a confirmation score of just one defeated presidential nominee since the rules change.
“Because of the rules change we’ve made a big difference on issues to working-class families,” said Sen. Jeff Merkley (D-Ore.), who teamed with Sen. Tom Udall (D-N.M.) to advocate rules reform. “I feel good about that. I feel very good about roughly the doubling of pace that we’ve been confirming judges. I’ve felt that the Republican strategy was trying to pack the courts ideologically by trying to prevent President Barack Obama to have votes on judges.”
The Senate has confirmed 13 appellate court judges and 55 district court judges since last November, cutting the number of vacant judicial seats to 58, the lowest number since Obama assumed his presidency. Given Democrats’ nearly single-minded nomination dedication, aides project that number will fall further before 2015.
Confirmation rates are up, most notably for key appellate judges, which are being confirmed at a clip of about 95 percent — the best since the 1980s, said Sarah Binder, a Brookings fellow and George Washington University political science professor who studies judicial nominees. Binder said that appeals courts are approaching partisan parity for the first time since the beginning of George W. Bush’s presidency.
“He has reshifted the partisan balance,” Binder said of Obama. “There’s a legacy to that.”
Not including senior judges, judges appointed by Democratic presidents hold the edge over GOP-nominated judges on nine of the nation’s powerful circuit courts. There are currently only a handful of vacancies and the Senate will vote to fill one the day it reconvenes in September.
The focus on nominations underscores the fears that Republicans will win the Senate and close the confirmation door to Obama.
“I’m sure they will shut it down. That’s why we’re launching everyone through,” said a Democratic leadership aide. “Even if we’re still in the majority, we’ll probably spend a lot of time in the lame duck on the nominees.”
Democrats are anticipating that their legacy may be defined sooner rather than later. Reid has joked about the “simple math” that gives Democrats the edge on the D.C. Circuit Court of Appeals, deemed by most legal watchers to be second only to the Supreme Court in legal impact and precedent.
That court was the focal point of Democrats’ decision to lower the voting bar from 60 to a simple majority after the GOP rejected three of Obama’s picks last fall for the then-evenly split court. Now, Democratic appointees are in the majority, which will affect legal challenges to the president on laws like Affordable Care Act.
“It could mean that a working person will be able to get affordable insurance,” said Michelle Schwartz, a former Senate Democratic staffer now at the Alliance for Justice.
Still, there are sure to be casualties of the rules change. There are more than 150 nominees awaiting Senate floor action and there is not enough time to jam them all through. That new ambassador to Lesotho might have to wait until next year — or beyond.
GOP leaders refuse to entertain how they will handle the confirmation process if they control the chamber, but procedural agreements made at the start of 2013 ensure there will be a discussion — and probably a fight — over how the Senate operates, regardless of who’s in the majority.
Kenneth P. Vogel contributed to this report.
(This article originally appeared in Politico.)