Late Thursday morning, Senate Democrats finally invoked the so-called “nuclear option,” eliminating the minority’s ability to block nearly all nominees by filibusters forever. This is good news for anyone who believes that the United States should have a fully functioning government. It’s also not enough. Despite the massive step Senate Democrats just took to fix a broken Senate, Republicans still retain significant power to obstruct confirmations and block legislation under the Senate’s arcane rules and practices. Here are three more rules or other aspects of Senate procedure that would need to be changed in order to prevent further obstruction by Republicans:
1. “Blue Slips”
The immediate impact of Thursday’s rule change is that nearly every nomination that reaches the Senate floor can be confirmed by a simple majority vote (the rules change exempts Supreme Court nominees, although that exemption is unlikely to last). The problem for many nominees or potential nominees, however, is that the rules allow just one Senator to prevent them from reaching the floor in the first place. Thanks to a relic of an old patronage system that was dismantled in the Carter and Reagan Administrations, senators can effectively block judicial nominees from their own state. This problem is exacerbated by the fact that courts of appeals judges, who typically preside over cases from multiple states, are considered to be tied to a particular state. Thus, the senators from Texas can block anyone nominated to two Texas vacancies on the United States Court of Appeals for the Fifth Circuit.
In other words, President Obama cannot fill these seats, unless he gets permission from Ted Cruz.
As Senate Judiciary Chair, Sen. Patrick Leahy (D-VT) has the power to abolish this practice — known as the “blue slip” rule. Indeed, in 2003, then-Judiciary Chair Orrin Hatch (R-UT) abandoned the blue slip rule in favor of a looser standard that allowed judicial nominations to move forward “provided that the Administration  engaged in pre-nomination consultation with both of the home-state Senators.”
2. Filibustering Legislation
Today’s rules change also does not apply to legislation, only nominees. While this will not matter much in the short term, because Speaker John Boehner (R-OH) can effectively block any legislation that does not enjoy bipartisan support, it will matter a great deal if one part regains control of both houses of Congress and the White House.
3. Pointless Delay
Though judges and executive branch nominees may now be confirmed by a simple majority vote, the Senate’s permanent rules permit the minority to force up to 30 hours of delay on each nominee. Though an agreement reached last January reduces the amount of delay on many nominees, this change sunsets in 2014.
There is no purpose for this delay. The original purpose of allowing 30 hours of debate before a final vote is to allow last-minute amendments to be considered, but nominees cannot be amended.