Yesterday, the Senate voted 88-12 to confirm Judge William Kayatta Jr. to the United States Court of Appeals for the First Circuit. Kayatta, who President Obama nominated for this job more than a year ago, is the first federal appellate judge confirmed since Senate Republicans unilaterally declared they would block every single appellate nominee — regardless of their background or qualifications — last June.

In June, Republicans falsely claimed that the opposition party has historically blocked court of appeals nominees during the six months before a presidential election, and thus they were justified in obstructing Obama’s nominees. In reality, the Senate confirmed appellate judges during the pre-election period in every single recent election year except for President Clinton’s first term. President Reagan had 7 appellate judges confirmed during the six months before his reelection, and the first President Bush also saw 7 of his appellate judges confirmed in the half year before he was defeated by Clinton.

Notably, Republicans did not remove their blockade during the lame duck period even after President Obama was reelected.

Two years ago, Justice Ruth Bader Ginsburg lamented that if she were nominated today to her current job on the Supreme Court, her “ACLU connection would probably disqualify” her from being confirmed. Before becoming a judge, Ginsburg led the ACLU’s Women’s Rights Project, where she was literally the single most important women’s rights attorney in American history. As Dahlia Lithwick explains, Ginsburg “almost single-handedly convinced the courts and legislatures to do away with gender classifications” in a range of cases and ushered in modern constitutional doctrine protecting women in the process.

At an event sponsored by the San Diego Association of Business Trial Lawyers on Friday, Ginsburg offered even stronger words of condemnation for our broken senate-confirmation process:

There were only three votes in opposition when she was confirmed to the court by the Senate, but in the past she has said that she doubts if in today’s more partisan political environment if she would be confirmed for the court.

She said Friday that she was hopeful that someday soon the partisan battles over court nominees will fade.

“I’m hoping there will be members of Congress who will say enough. We are destroying the United States’ reputation in the world as a beacon of democracy, and we should go back to the way it was, and the way it should be,” she said of the confirmation process.

It is likely that Ginsburg’s Court will soon take up a lower court’s decision that effectively eliminated the president’s power to make recess appointments. This decision came in the wake of an effort by Senate Republicans to effectively shut down entire federal agencies by filibustering anyone nominated to head them. A Supreme Court opinion reversing that lower court’s error will do little to address the problem of filibusters preventing judges from receiving lifetime appointments to the federal bench, but it will cut off the Senate GOP’s attempt to destroy entire agencies despite controlling neither the White House nor the Senate majority.

In a report suggesting that Senate Democrats are likely to have the 51 votes necessary to reform the filibuster next month, Ryan Grim reports that Senate Majority Leader Reid (D-NV) has embraced an important reform to prevent obstruction of judicial and other nominees. According to Grim, Reid, “wants to streamline the nomination process, and cut out some of the time it takes to move judges through by limiting debate once a filibuster has been defeated.”

This is a significant addition to the package of reforms Reid already endorsed, which include eliminating the minority’s ability to filibuster the same bill more than once and requiring a senator to speak on the floor in order to maintain a filibuster. Under current Senate rules, the minority can force up to 30 hours of floor time to be wasted even after a supermajority of the Senate votes to break a filibuster on a nominee. When multiplied across the many hundreds of nominees the Senate must confirm, these 30 hours of wasted time allow the minority to bring the Senate to a virtual standstill.

Of course, it remains to be seen just how deeply Reid is willing to cut these 30 hours — in an ideal world, he will embrace Sen. Jeff Merkley’s (D-OR) suggestion to eliminate all of them. Nevertheless, the fact that Reid appears to be on board with cutting short these 30 hours of waste is a significant positive development in the negotiations over filibuster reform.

A new Public Policy Polling poll finds overwhelming support for filibuster reform generally, and similarly strong support for specific reforms currently under discussion. The poll, which includes respondents from the ten states of Arkansas, California, Florida, Massachusetts, Michigan, Missouri, Montana, North Carolina, Rhode Island, and Vermont, finds that 61 percent of the public wants their senator to vote to change the Senate’s rules, while only 25 percent support the status quo. Similarly, the poll finds that 62 percent support “allowing one opportunity to filibuster a bill instead of the four different opportunities to filibuster that the current Senate rules allow,” and 70 percent support a proposal to “make Senators who want to filibuster a bill have to continue to debate the bill on the Senate floor.”

The most popular reform tested by the poll, however, is ensuring that “people who have been nominated to serve as judges have an up or down vote on their nominations in a more timely manner.” 75 percent of respondents supported this proposal. Only 17 percent oppose it. This very popular reform closely resembles a proposal by President Obama in his State of the Union Address last January to guarantee every nominee an up or down vote within 90 days.

The Senate, however, does not appear to have not caught up to the President and public opinion in supporting a guaranteed timely floor vote for nominees. In an exclusive interview with ThinkProgress last week, Sen. Jeff Merkley (D-OR) expressed doubt that Obama’s proposal would receive the support of a majority of his colleagues. Merkley also proposed a more moderate reform, however, that would go a long way towards ending obstruction of federal judges.

Currently, the minority can force up to 30 hours of floor time to be wasted even after a supermajority of the Senate votes to break a filibuster on a nominee. Because Senate floor time is so precious, the mere threat of this wasted time is often enough to prevent the majority from calling a vote on nominees, even though the nominees enjoy overwhelming bipartisan support. Merkley proposed proposed reducing these 30 hours to just 2 hours, or even to no time at all — thus ensuring that the overwhelming majority of nominees, who face no meaningful opposition even from senators in the minority, will no longer be used as bargain chips in a one-sided game of obstructionism.

With the possibility of meaningful filibuster reform looming next month, at least four Republican senators are now claiming that they are willing to strike a deal that would change the Senate rules without requiring Senate Democrats to invoke a procedure enabling them to do so with only 51 votes:

[T]op Senate Republicans — including John McCain of Arizona, Lamar Alexander of Tennessee, Jon Kyl of Arizona and Lindsey Graham of South Carolina — are trying to head off the showdown. They’re reaching out to Democrats who have expressed concerns about changing the rules by 51 votes, including Sens. Mark Pryor of Arkansas and Carl Levin of Michigan. And Republicans are reaching out to a key Reid ally, New York Sen. Chuck Schumer, the No. 3 Senate Democrat and chairman of the Rules Committee, to see whether a deal can be cut before the new Congress convenes in January.

McCain called it a “meeting of the minds.”

“I’d like to see what we agree on and where we can share our mutual concerns,” the Arizona Republican said.

There are a number of moderate rules reforms that reasonable Republicans should be willing to support if they are willing to deal with Senate Democrats in good faith. Last week, for example, Sen. Jeff Merkley (D-OR) proposed eliminating a quirk of the current rules which allows filibustering senators to force up to 30 hours of floor time to be wasted every single time the Senate confirms a nominee. This rule serves no purpose other than delay — if it were eliminated, minority senators would still be able to block nominees they oppose strongly unless the majority could produce 60 votes to break their filibuster — and if McCain, Alexander and their colleagues want to make a deal, agreeing to eliminate these 30 hours would be a good way to demonstrate that they are serious.

Nevertheless, Senate Democrats should be cautious of striking a deal in light of recent history. Two years ago, Minority Leader Mitch McConnell (R-KY) agreed to a “handshake deal” that ultimately achieved nothing more than a minor bill eliminating Senate confirmations of multiple low and mid-level appointees. The Senate minority’s practice of obstructing judges and other key appointees remained unchecked, and it continues to this day.

Similarly, in 2005, when Senate Republicans threatened to enact filibuster reform by a majority vote in order to end filibusters of a handful of President George W. Bush’s judicial nominees, many Senate Democrats eventually agreed to a deal that confirmed three of Bush’s most ideological judges. These included Judge Janice Rogers Brown, who once compared Social Security to cannibalism and who recently authored an opinion claiming that all labor, business or Wall Street regulation is constitutionally suspect; and Judge Priscilla Owen, who took thousands of dollars worth of campaign contributions from Enron when she sat on the Texas Supreme Court and then wrote a key opinion reducing Enron’s taxes by $15 million.

So Senate Democrats have a history of agreeing to lopsided deals on filibuster reform that favor the other party. If they have the 51 votes necessary to move forward with reforms this time around, there is no good reason for them to accept a lesser deal for its own sake.

When Senate Majority Leader Harry Reid (D-NV) announced that he was “wrong” to oppose filibuster reform in 2011, he named two senators as “prophetic” advocates of reform, Sens. Tom Udall (D-NM) and Jeff Merkley (D-OR). These two senators will now play a key role in shaping the filibuster reform package that Senate Democrats ultimately bring to the Senate floor next month. In an exclusive interview with ThinkProgress, Sen. Merkley laid out what he believes that package will include and what he hopes to add to it. His remarks should give progressives hope.

Merkley began the interview by endorsing two reforms that it was already clear would be included in the reform package this January: eliminating the minority’s ability to filibuster the same bill more than once and requiring a senator to speak on the floor in order to maintain a filibuster. Reid already publicly endorsed both of these proposals. Yet, as ThinkProgress has explained, they are not sufficient in and of themselves to prevent widespread obstructionism.

Sen. Merkley, however, listed several other reforms he would like to include in the final package that, together with the two Reid has already endorsed, add up to something quite meaningful. Under current Senate rules, the minority can force up to 30 hours of floor time to be wasted even after a supermajority of the Senate votes to break a filibuster on a nominee. And while 30 hours may not seem like a lot, when they are multiplied across the hundreds of nominees a president must confirm, these 30 hours enables the minority to literally force the Senate to waste years of precious work time doing nothing but confirming judges and executive branch officials. These 30 hours are likely the single greatest tool an obstructionist minority possess, and Senate Republicans wielded this tool to great effect in order to block President Obama’s nominees.

Merkley called for eliminating this opportunity for obstruction completely:

Two years ago, the package that Tom Udall and I put together included reducing those 30 hours to 2 hours, so people could make a final comment as their colleagues were about to vote. And something like that is appropriate. I think it could even be appropriate to go to zero hours, and here’s why: it takes two days for a cloture petition to “ripen.” What that means is that, by the time you file it, and its all public, you have to wait until the day after an intervening day. And so there’s plenty of time for people to make their final case once that petition is there. So if you reduce it to zero hours, you can have a series of cloture petitions and a series of votes that no one could basically — on a Thursday night or a Friday night you could go through a whole series of judges.

Watch it:

This is a serious proposal, and it would do more to restore the Senate’s ability to function than anything else that has been seriously discussed since the election. So long as John Boehner controls the House, there is little the Senate can do to pass legislation over Republican objections. Merkley’s proposal to eliminate these 30 hours of delay, however, would completely strip away one of the current minority’s favorite tactics — filibustering nominees they don’t even oppose.

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Late last week, Chief Judge David Sentelle of the United States Court of Appeals for the D.C. Circuit announced that he will take partial retirement, effective this February. This alone is an occasion for celebration. Sentelle is among the most ideological judges in the country. Just last April, he joined an opinion suggesting that all labor, business or Wall Street regulation is constitutionally suspect. If President Obama’s reelection accomplishes nothing more than allowing Sentelle’s retrograde vision of the Constitution to fade from the federal bench, then Obama will do more to preserve and protect the Constitution than many presidents can hope to accomplish in two terms.

Just as importantly, Sentelle’s announcement gives President Obama an opportunity to transform a court that is second only to the Supreme Court in its power and importance. Sentelle’s partial retirement opens up the fourth vacancy on the D.C. Circuit, meaning that Obama could change this court — where Republican appointees currently enjoy a 5-3 advantage among active judges — into a 7-4 incubator for progressive legal thought.

The D.C. Circuit’s conservatives milked their current majority to continue the policies of George W. Bush long after the American people rejected his ideology. Unlike most federal courts of appeal, whose dockets are dominated by routine criminal, immigration and other cases that often have little impact on the nation at large, the D.C. Circuit’s bread and butter are major national security cases and challenges to major national regulations. Indeed, many of the Obama Administration’s efforts at environmental protection have been choked in their infancy by the D.C. Circuit’s powerful conservative bloc.

Senate Republicans, however, are unlikely to take Obama’s efforts to built a D.C. Circuit that is tolerant of democracy lying down. To the contrary, they’ve blocked Obama’s nomination of an outstanding attorney named Caitlin Halligan to this court for more than two years, despite barely being able to articulate a reason to oppose her. It is unlikely that Obama’s other nominee, to the D.C. Circuit, Principal Deputy Solicitor General Sri Srinivasan, or whoever the president names to the other two vacancies, will receive better treatment.

In other words, Sentelle’s announcement adds yet another reason why it is essential for Senate Democrats to push robust filibuster reform this January which prevents the minority from blocking President Obama’s nominees.

According to data from the Federal Judicial Center, the rate of judicial confirmations under President Obama is slower than the rate during any president’s first term since the term begun by President John F. Kennedy in 1961. The chart below includes all Article III federal judicial confirmations during a president’s first term. As the purpose of the chart is to compare President Obama’s first term to the same period in prior presidencies, it does not include President Gerald Ford because Ford’s presidency completed what began as President Richard Nixon’s second term. The chart does include the entire four year term that began under Kennedy and ended under President Lyndon Johnson:

Although the chart indicates that more judges were confirmed under President Obama than during the Kennedy/Johnson term and that Obama’s confirmation rate is only slightly lower than President Ronald Reagan’s, these numbers are deceptive. Today the federal bench includes 870 authorized active judgeships, including the nine justices of the Supreme Court. This is more than twice the 407 judgeships authorized under President Kennedy and significantly more than the 757 judgeships authorized at the end of President Reagan’s first term. So the Senate confirmed fewer judges under President Obama despite the fact that Obama had more judgeships to fill.

To be sure, President Obama has not been as aggressive as he should have been in naming new judges and throwing his political support behind his existing nominees. But the single biggest obstacle to judicial confirmations under Obama is the record intransigence shown by Senate Republicans. Nearly one quarter of all attempts to break a filibuster on a presidential nominee during the first 221 years of the American republic involved Senate Republican filibusters of President Obama’s nominees.

It is not too late, however, for the Senate to back away from its lowest judicial confirmation rate since the Johnson Administration. Nineteen judicial nominees await confirmation votes on the Senate floor, most of whom are completely uncontroversial.

From the founding of the Republic until the beginning of the current Congress, the Senate voted to break a filibuster on a president’s nominee only 89 times. Nearly one quarter of all of these were Senate Republican filibusters of President Obama’s nominees. No senate minority in American history was as aggressive in filibustering presidential nominees as the minority led by Sen. Mitch McConnell (R-KY).

Lest there be any doubt, this kind of obstructionism does far more than simply frustrate President Obama — it denies the American people a fully functioning government and discourages the most talented potential nominees from seeking government jobs in the first place. Here are just a few of the most exceptional nominees blocked by the Senate’s nonsensical filibuster rules:

1) Peter Diamond (Federal Reserve Board of Governors)

In 2010, Sen. Richard Shelby (R-AL) placed a hold on MIT Economics Professor Peter Diamond’s nomination to the Federal Reserve Board because he deemed Diamond too unqualified to sit on the board. A few months later, Diamond won the Nobel Prize in Economics. Nevertheless, Shelby clung to his efforts to keep Diamond off the Fed board, and the Nobel Prize winning economist eventually withdrew his nomination. In an op-ed explaining his withdraw, Diamond warned that “we should all worry about how distorted the confirmation process has become, and how little understanding of monetary policy there is among some of those responsible for its Congressional oversight. . . . Skilled analytical thinking should not be drowned out by mistaken, ideologically driven views that more is always better or less is always better. I had hoped to bring some of my own expertise and experience to the Fed. Now I hope someone else can.”

2) Joseph Smith (Federal Housing Finance Agency)

In November 2010, President Obama nominated Joseph A. Smith Jr., then North Carolina’s longtime Commissioner of Banks, to head the independent FHFA. Though the Senate Banking Committee overwhelmingly endorsed his nomination, on a 16-6 vote, Senate Republicans blocked a confirmation vote and scuttled his nomination by running out the clock. Sen. Richard Shelby’s (R-AL), fearing Smith might help underwater homeowners with mortgage principal reductions, opposed him and called him “a tool of the administration, cutting mortgages, throwing the bill to the taxpayers.” As a result of this obstruction, FHFA Acting Director Edward DeMarco — the deputy to President George W. Bush’s director — continues to run the agency and has single-handedly blocked White House mortgage debt relief efforts. More than a quarter of Americans with home mortgages are currently underwater, owing more to the lender than their property is currently worth.

3) Caitlin Halligan (United States Court of Appeals for the D.C. Circuit)

Caitlin Halligan is one of the nation’s best attorneys. Halligan is a former Supreme Court law clerk, a former Solicitor General of the state of New York, the former head of appellate litigation at one of the nation’s top law firms and is currently general counsel for one of the largest prosecutor’s offices in the country. Halligan taught constitutional law at Columbia Law School. She received the highest possible rating from the American Bar Association. And her nomination to the federal bench enjoys the support of some of the nation’s top Supreme Court advocates, many of whom are Republicans. Yet her nomination has languished for more than two years despite the fact that Senate Republicans have barely even managed to articulate a case against Halligan’s confirmation. Indeed, the best her opponents have come up with is a complaint that she argued positions the National Rifle Association disagrees with on behalf of her former client — the state of New York. Apparently, the NRA gets to veto judges now.

4) John J. Sullivan (Federal Election Commission)

In 2009, when President Obama nominated Sullivan , a respected labor lawyer, to replace a Democratric FEC Commissioner whose term expired two years earlier, his nomination received praise from campaign finance reform advocates and opponents. The Senate Rules and Administration Committee unanimously recommended his nomination, with the panel’s top Republican endorsing Sullivan as “eminently well-qualified for this position.” Though neither actually opposed the nomination, Sen. John McCain (R-AZ) and then-Sen. Russ Feingold (D-WI) placed a “hold” on the nomination — essentially announcing their intention to force a time-consuming cloture vote with a 60 vote super-majority threshold — demanding the administration also replace other members of the gridlocked Commission. After 15 months without a vote, Sullivan asked the White House to withdraw his nomination and lamented a “broken system.” “The problem with cloture,” Sullivan noted, “is not the vote but the amount of floor time it takes in the Senate. It is an incredible distraction to occupy the Senate with a nomination like mine with so many other pressing matters on the floor.” Two years later, not one of the five FEC commissioners serving on expired terms has been replaced.

5) Dawn Johnsen (Department of Justice, Office of Legal Counsel)

Before even taking the oath of office, President Obama announced that Dawn Johnsen, an outspoken opponent of torture, would lead the Department of Justice’s Office of Legal Counsel (OLC). In this role, she would lead the same office that produced the infamous “torture memos” justifying this illegal practice during the Bush Administration. Johnsen headed the same office during the Clinton Administration, and she co-authored a set of principles for future OLC attorneys to ensure that a repeat of the torture memos did not occur. Senate Republicans filibustered her nomination, fixating in their rhetoric on her record as an attorney defending abortion rights before she entered government service, but Johnsen herself suspected a difference motive. In a 2011 interview, Johnsen indicated that she was blocked in an attempt to score political points against Obama’s approach to terrorism.

Bonus: Richard Cordray (Consumer Financial Protection Bureau)

In July 2011, President Obama nominated Cordray, a former Ohio Attorney General, to be the first-ever director of the newly created Consumer Financial Protection Bureau. A group of 44 Senate Republicans immediately announced that they would refuse to vote for Cordray or any nominee for the position, unless the independent agency was first defanged. That December, 45 Republicans blocked an up-or-down-vote on Cordray’s nomination, even though he had majority support and Republican opponents admitted he was qualified. President Obama recess appointed Cordray in January, but that only runs through the end of 2013.

Earlier today, the White House released a statement indicating that “the President supports Senator Reid’s efforts to reform the filibuster process.” To date, Majority Leader Harry Reid (D-NV) has kept the details of his plans to reform the filibuster vague. He does endorse eliminating filibusters on the “motion to proceed,” a minor tweak that would take away the minority’s power to filibuster the same bill twice before it can receive a vote. And Reid also endorses some form of “talking filibuster” that will require at least one senator to speak in defense of a filibuster on the Senate floor in order to maintain their obstruction — an idea that could achieve meaningful change if it includes a proposal by Sen. Jeff Merkley (D-OR) to require a minimum number of senators to be on the Senate floor at all times in order to maintain a filibuster. Until Reid releases more details about whether his plans include the Merkley proposal or something similarly significant, however, it is difficult to assess whether his efforts will end Senate Minority Leader Mitch McConnell’s six year reign as master of Senate obstructionism.

Last January, however, Reid supported a very significant proposal by President Obama that would achieve far more to enable the Senate to function in the next two years than the two most widely discussed reforms. In his State of the Union Address this year, the president proposed changing the Senate’s rules to ensure that all presidential nominees receive an up or down vote in the Senate:

Some of what’s broken has to do with the way Congress does its business these days. A simple majority is no longer enough to get anything, even routine business, passed through the Senate. Neither party has been blameless in these tactics. Now, both parties should put an end to it. For starters, I ask the senate to pass a simple rule that all judicial and public servant nominations receive an up or down vote within 90 days.

Watch it:

Reid indicated his support for this proposal shortly after President Obama suggested it, although with the caveat that he wanted to keep the filibuster for Supreme Court nominations.

The reality is that Republicans control the House — and, thanks to partisan gerrymandering, will likely continue to do so for the near future. So any filibuster reform that prevents obstruction of legislation is unlikely to accomplish much so long as Republicans can still dominate the legislative process in the other half of Congress. For this reason, President Obama’s proposal is the most important and most significant filibuster reform proposal suggested to date. It will clear the Senate to conduct the one kind of business it can perform without asking Speaker John Boehner’s permission — confirming nominees — and eliminate the silly charade that allows Senate Republicans to declare Nobel Prize winning economists unqualified to set economic policy and top legal scholars unsuited to be judges.

Obama’s decision to support Reid is significant, but the far more important question is whether Reid still supports Obama’s plan to end minority obstruction of the confirmation process — and whether Reid will include the Obama plan in his filibuster reform package in January.