House majority leader Harry Reid (D) of Nevada threw the Senate into turmoil Thursday by pushing a rule change in the way the Senate approves presidential nominees. He complains that Republicans are obstructing the smooth running of government by using the filibuster – the ability of one senator to block legislation or a nomination – unless it's overcome by 60 votes, which is next to impossible for Democrats to muster, with Republicans holding 45 seats.
The Republicans contend just the opposite, that the filibuster is a protection for the minority party and that it prevents bad laws and bad appointments from approval. They accuse Senator Reid of invoking a "nuclear option" that will obliterate the Senate's constitutional role of "advise and consent" – in which the Senate is to carefully consider and then vote on presidential judicial and executive branch appointments.
In a Q&A, we look at the rule change that Democrats approved on a 52-to-48 vote, with three Democrats and all Republicans opposing:
Reid's proposed change to the rules bulldozes the filibuster and replaces it with simple majority approval for all executive and most judicial branch appointees, from agency heads and their assistants to federal judges. About a thousand positions need Senate confirmation every year. But Reid exempted the most important business of the Senate from this change: Supreme Court judges and legislation. And the change applies to future presidents, Republican or Democrat.
In a limited way, yes. But most Americans don't get tied up in knots over who is going to be the assistant to the assistant in the bureaucracy in Washington. They do care deeply about who is going to sit on the Supreme Court and when important bills are in the Senate pipeline. For that reason, Reid is really only dropping a conventional bomb, not a nuclear one. Sen. Rand Paul (R) of Kentucky will still be able to filibuster over drone legislation, and lawmakers will still be able to try to block or delay Supreme Court nominees.
It is about power, the role of the Senate, and history – past and in the making. At the urging of President Wilson, the Senate began limiting filibusters in 1917 with a rule requiring a two-thirds vote. (Prior to that, a single senator could delay or block legislation indefinitely, although the practice was not common.) Southern Democrats used the filibuster to block civil rights legislation advanced by leaders of their own party in the 1950s and early '60s. More recently, both Republicans and Democrats invoked the filibuster to block nominees of presidents of the opposite party.
Use of nominee-blocking filibusters started up in earnest under President Clinton, who faced GOP filibusters over nine of his appointees. Democrats picked up the pace of obstruction in the Bush years, and Republicans retaliated further by threatening a filibuster on nearly all legislation and executive appointments in the Obama years.
Democrats say the obstruction is bringing government to a standstill. Americans might not care much about agency and lower-court appointees, but they actually do the work of government. Democrats complain of an explosion of GOP filibusters under President Obama: 27 executive nominees in his first term compared to seven under President George W. Bush.
They're furious. Minority leader Mitch McConnell (R) of Kentucky took to the Senate floor to accuse Reid of changing the rules to distract from the disaster of Obamacare. "This strategy of distract, distract, distract is getting old," he said. He warned against a "raw power" play and defended the GOP record of approval for judicial nominees, compared with Democratic obstruction in the Bush years. Senator McConnell said Republicans had confirmed 215 of the president's judicial nominees and rejected two. But McConnell also said he was "not interested in talking about reprisal."
However, the Senate operates largely on unanimous consent. That means that even a single disgruntled senator can tie up the Senate in procedural knots by refusing, for example, to agree to dispense with the reading of a bill before a vote.
Frustration over the filibuster has been building for years, with both parties at times unhappy with it. The trigger in this fight is over blocked judicial appointments to the D.C. Circuit Court, which some consider the most important court in the land after the Supreme Court. That's because this federal appeals court rules on disputes over actions by the White House and its federal agencies, including federal regulations and disputes over executive power. Essentially, it rules on the constitutionality of the actions of the executive branch. The D.C. Circuit is evenly divided between Democrat and Republican appointees, with eight active judges and three vacancies.