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Why Senate Democrats Had To Invoke The ‘Nuclear Option’

By Ian Millhiser on November 21, 2013 at 12:32 pm

"Why Senate Democrats Had To Invoke The ‘Nuclear Option’"

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President Obama introduces three nominees to the United States Court of Appeals for the District of Columbia Circuit

President Obama introduces three nominees to the United States Court of Appeals for the District of Columbia Circuit

CREDIT: AP

Well, it finally happened.

After five years of filibusters, obstruction, lengthy waits for confirmation and arguments over whether the party that failed to win either the White House or the Senate nonetheless has the power to hold top government jobs open for as long as Barack Obama is president, Senate Democrats finally decided that enough is enough. On Thursday, nearly every member of the Democratic caucus invoked a procedural maneuver that will allow the Senate to confirm several blocked nominees by a majority vote. The era of minority rule is over, at least where it comes to almost every confirmation.

As the two parties try to blame each other for the circumstances that made this maneuver necessary, a lot of graphs, charts, statistics and outright fabrications are going to be thrown around by each side to prove that the other was the instigator. The truth, however, is that you only need to look at one chart to understand how we got here — this one:

cloture_gfx-03

Though it’s not a perfect measure, a common mechanism used to gauge the frequency of filibusters is the number of “cloture motions” filed during a particular Congress — “cloture” is the procedure used to break a filibuster. So, while filibusters certainly were not unheard of before Democrats gained their current majority and Sen. Mitch McConnell (R-KY) became the Republican leader, they spiked massively the minute McConnell assumed this position. Indeed, nearly 3 in 10 of all cloture motions filed in the history of the Senate were filed during McConnell’s tenure as Minority Leader. Any claim that the Senate’s current minority is simply following past practices is not credible. The filibuster existed before the Age of McConnell, but McConnell made them commonplace.

But, beyond the unprecedented frequency of filibusters under Mitch McConnell, the current Republican minority wielded them to seize an unprecedented degree of control over the law and the judiciary. With enough creativity, Senate Republicans discovered that the filibuster could not simply prevent new laws from being enacted, it could also be used to effectively repeal laws protecting workers and regulating Wall Street. By refusing to confirm nominees to lifetime appointments on the federal bench, they could also ensure that some of the nation’s most powerful courts remained in Republican hands. And looming over all of this is the next Supreme Court vacancy. If Senate Republicans will use the filibuster today to keep their grip on the nation’s second most powerful court, imagine what they’ll do if a justice retires.

The End of Unions

A similar showdown over filibuster reform was averted last July after Republicans agreed to stop using the filibuster to prevent seven key non-judicial jobs from being filled. Among the seven jobs Senate Republicans refused to confirm were three slots on the National Labor Relations Board, the agency with exclusive authority to enforce much of federal labor law. Without the NLRB,

there will be no one to enforce workers’ rights to join a union without intimidation from their employer. No one to enforce workers’ rights to join together to oppose abusive work conditions. And no one to make an employer actually bargain with a union. Without an NLRB to enforce the law, it may be possible for an employer to round up all of their pro-union workers, fire them, and then replace them with anti-union scabs who will immediately call a vote to decertify the union.

Two sets of court decisions provoked a crisis that threatened to shut down the NLRB entirely. The first was a 2010 Supreme Court decision holding that the NLRB is powerless to act without a quorum of at least three members. Thus, by filibustering nominees to a majority of the seats on the NLRB, Senate Republicans were on the verge of depriving it of the quorum it needs to operate. And if the NLRB went dark, many of the protections workers enjoy in the workplace would cease to exist until a sufficient number of seats were filled.

Normally, President Obama could ward this off by making recess appointments to fill these vacant seats — but three court decisions effectively eliminated the President’s ability to do so. Every single Republican judge to weigh in on this question voted to neuter Obama’s ability to make recess appointments, while every single Democratic judge voted in line with a previous court decision leaving the recess appointments power undisturbed. There are five Republicans on the Supreme Court, and only four Democrats, so it wasn’t hard to guess how this would end.

Though Senate Republicans eventually caved to Democratic threats to nuke the filibuster last July — all five slots on the NLRB are now filled by Senate-confirmed appointees — this solution is only temporary. NLRB members serve five year terms, so the Senate GOP will get another opportunity to shut down federal labor law when these terms expire, even if they are still in the minority and a Democrat is in the White House.

Only a permanent change to the Senate’s rules can remove the cloud over the NLRB and ensure that a minority of the Senate cannot shut down federal labor law in the future.

The Supreme Court’s Farm Team

The battle that finally triggered the so-called “nuclear option” involved three nominees to the United States Court of Appeals for the District of Columbia Circuit. The D.C. Circuit is widely viewed as the second most powerful court in the country because it hears an unusually large volume of major regulatory cases and cases involving national security. Indeed, this court has exclusive jurisdiction over many cases involving federal agency action and regulations — meaning that if the D.C. Circuit objects to a federal regulation, the only authority that can second-guess them is the conservative Roberts Court.

Currently, the D.C. Circuit is dominated by very conservative Republicans. Although the court has four active judges from each party, it also includes six judges in partial retirement who continue to hear a fairly substantial load of cases. Five of these six senior judges are Republicans.

Nearly all cases before the D.C. Circuit are heard by three-judge panels assembled randomly from the court’s active and senior judges, meaning that the vast majority of cases are heard by Republican panels. As a result, the court’s judges struck down environmental regulations that would literally prevent tens of thousands of deaths. They restricted women’s access to birth control. They held that employers have a constitutional right to keep workers ignorant of their rights. And they handed down a staggeringly broad attack on the recess appointments power. Two judges, David Sentelle and Janice Rogers Brown, joined an opinion arguing that all labor, business or Wall Street regulation is constitutionally suspect.

Though Senate Republicans primarily rely on misleading statistics to justify their decision to filibuster President Obama’s nominees to this court, they have occasionally been candid about their partisan motivations for doing so. In an op-ed published by Fox News, for example, Senate Minority Whip John Cornyn (R-TX) admitted that he supports the filibusters because he does not want Democrats to “switch the majority” on the D.C. Circuit.

It’s also worth noting that, when George W. Bush was in the White House, Senate Republicans held very different views about the D.C. Circuit. Today, they object to the fact that President Obama wants to confirm more than eight active judges to the court, but when Bush was president, many of the same Republicans voted to confirm a total of eleven active judges to this court. If Obama fails to fill the court’s vacancies, it’s easy to imagine that Senate Republicans will once again be happy to confirm new judges if one of their fellow partisans moves into the White House. The result will be that, no matter who the American people elect as president, Republicans will have a virtual veto power over agency actions through their control of the D.C. Circuit.

The Bigs

If Senate Republicans are willing to fight this hard to keep control over the second most powerful court in the country, imagine what will happen if Justice Scalia decides to spend more time with his family? In 2009, when President Obama was at the peak of his popularity, just nine Republican senators voted to confirm Justice Sotomayor — and only three are still in the Senate. Even if those three, Sens. Lamar Alexander (R-TN), Susan Collins (R-ME) and Lindsay Graham (R-SC) support the next Supreme Court nominee, that’s still two votes shy of the amount needed to break a filibuster if all 55 Democrats also support the nominee.

And there’s no guarantee that these three Republicans would not filibuster a Democratic appointee to the Supreme Court. In 2012, a Tea Party candidate named Richard Mourdock defeated six-term incumbent Sen. Richard Lugar (R-IN) in the Republican Party primary. Mourdock made Lugar’s votes in favor of Justices Sotomayor and Kagan a major focus of his primary campaign. When primary season rolls around next year, and the next cycle after that, and the next cycle after that, Republican senators are going to remember what happened to Richard Lugar. If they want to keep their jobs, they’re going to be very reluctant to vote for another Sotomayor or Kagan.

Simply put, if Democrats every want to confirm another justice to the Supreme Court of the United States, they have to stand for filibuster reform.

Technically, the changes that Senate Democrats backed today still allow filibusters on Supreme Court nominees. As a practical matter, however, that should not matter one bit. Now that the nuclear option is established as an effective way to bypass minority obstruction, Democrats will have no excuse if they allow a future filibuster of a Democratic president’s Supreme Court nominee to stand.

Sabotage

Beyond the need to prevent Senate Republicans from cutting off workers’ rights or from forming an unbreakable grip on the judiciary, there is another, more subtle reason why filibuster reform can no longer be put off. While it’s a bit of a stretch to blame the botched Healthcare.gov roll out on a particular filibuster, one Senate Democratic source described this incident as a wake up call for Democrats about the perils of a dysfunctional government. Democrats’ central message is that they can deliver better results for the American people by tapping into the power of government to improve people’s lives. Every job that goes unfilled, every outstanding potential nominee who opts out of public service because they don’t want to deal with the hassle, and every deal that must be struck in order to accomplish basic government functions undermines the government’s ability to harness this power.

The filibuster allows Republicans to sabotage government and then campaign on the fact that government isn’t working. This is a recipe for more sabotage.

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