WASHINGTON, DC — Earlier this month, Senate Majority Leader Harry Reid (D-NV) admitted that a bloc of mostly junior senators who supported eliminating or significantly reforming the filibuster were “right” and “the rest of us were wrong,” when the Senate failed to pass filibuster reform last year. In an exclusive interview with ThinkProgress yesterday, Sen. Sheldon Whitehouse (D-RI) predicted that rules reform will happen in the wake of Reid’s admission:

QUESTION: Majority Leader Reid just came out in favor of filibuster reform after he had, um, not been so keen to it the last time we had an opportunity. I know that that’s an area where you’ve done a little bit of work. Do you think that [filibuster reform] is likely to happen when we get the window?

WHITEHOUSE: Yep, I do. . . . I think that the major targets will be the double filibuster, filibustering both the motion to proceed to the bill and then the bill itself. That would be one target. I think the other major target of filibuster reform will be changing the rules of the filibuster so that the filibustering minority actually has to spend time on the floor defending its filibuster, rather than, right now, it’s the majority trying to get to 60 that has to be ready to fend off quorum calls and have all the Senators ready — and only one senator needs to be around from the minority side to defend the filibuster.

Watch it:

The “window” my question refers to is a brief, constitutionally required period every two years shortly after newly-elected senators are sworn in. During this short window, the Senate can alter the filibuster rules or even eliminate the filibuster altogether with just 51 votes. Normally, 67 votes are required to change the Senate’s rules.

As ThinkProgress previously explained, Senate Democrats may not have a choice when the next window opens next January, assuming that Democrats maintain control of the Senate and the White House. Longtime Sen. Richard Lugar (R-IN) was recently defeated in the GOP Senate primary by a candidate who objected to Lugar’s votes for Supreme Court Justices Sotomayor and Kagan. In light of this precedent, it is likely that the few Senate Republicans who were unwilling to obstruct these two nominees will see the Tea Party in their rear view mirror during the next confirmation fight, and will fear being Lugared. If Senate Democrats do not take their next opportunity to pass filibuster reform, the consequence could be a complete inability to fill Supreme Court vacancies.

In 2020, someone will be elected president, and they will likely need to appoint a Supreme Court justice during their time in the White House. Senate Republicans have wielded every power at their disposal, however, to ensure that that this future president will have no experienced federal judges to nominate if they are a Democrat. When President Obama nominated Goodwin Liu, a young, brilliant legal scholar and former Supreme Court law clerk to a seat on the Ninth Circuit, the Republican caucus filibustered Liu until he was forced to withdraw his nomination (Liu is now a justice on the California Supreme Court). When Obama nominated Caitlin Halligan, another relatively young, brilliant attorney and former Supreme Court law clerk, she suffered a similar fate.

The cases against these two nominees were flimsy at best, even from a conservative perspective. Liu’s enjoyed the support of conservative icons like Clinton-inquistor Ken Starr and torture advocate John Yoo. Senators opposing his nomination offered little more than misrepresentation of his scholarship or hyperbolic claims that he wanted to turn America into “communist-run China.” The case against Halligan was even weaker, and largely boiled down to the fact that she once represented a client — the State of New York — that disagreed with the NRA.

On Monday, the Senate will try to break yet another filibuster — this time on Ninth Circuit nominee Paul Watford. And, once again, it’s tough to imagine a good reason to support this filibuster. Watford is a leading young attorney and a former Supreme Court clerk. He has a small army of conservative supporters, including nearly every single person who clerked for a Supreme Court justice at the time Watford worked on the Court. And his opponents have barely even managed to articulate a reason to oppose him. The best they’ve come up with is that, in a legal career that stretches twenty years, he represented two clients that Sen. Chuck Grassley (R-IA) doesn’t like.

Unfortunately for Watford, however, he is guilty of being the kind of exceptionally talented attorney who could be on the Supreme Court some day. If past is prologue, that will be reason enough for conservatives to filibuster him.

Four Members of Congress, Reps. John Lewis, (D-GA), Michael Michaud, (D-ME), Hank Johnson, (D-GA), and Keith Ellison, (D-MN) filed a lawsuit yesterday claiming that the filibuster is unconstitutional and must be blocked by federal courts. According to their complaint, the Constitution specifically lists only a handful of instances where a supermajority is required for Congress to act, and this list precludes such a requirement from being applied in other cases:

In the end, the Constitution proscribed six instances in which Congress would require more than a majority vote: impeaching the president, expelling members, overriding a presidential veto of a bill or order, ratifying treaties and amending the Constitution. . . . “The Framers were aware of the established rule of construction, expressio unius est exclusio alterius, and that by adopting these six exceptions to the principle of majority rule, they were excluding other exceptions.” By contrast, in the Bill of Rights, the Founders were careful to state that “the enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”

As a textual matter, this is a strong constitutional argument. Yet it is likely not to get off the ground because of something known as the “political question doctrine.” As the Supreme Court explained in Baker v. Carr, federal courts generally should avoid deciding questions where there is a “textually demonstrable constitutional commitment of the issue to a coordinate political department” — meaning that the Constitution’s text suggests that an issue should be decided by the executive or legislative branch and not by the judiciary. Because the Constitution provides that “[e]ach House may determine the Rules of its Proceedings,” the courts are likely — although not entirely certain — to dismiss this case because the Constitution reserves questions of Senate procedure to the Senate itself.

In other words, this lawsuit is likely to highlight why it is so important for the Senate itself to reform the filibuster to prevent the minority from shutting down America’s ability to effectively govern itself. And the Senate will have an opportunity to do so in about seven months. Once every two years, when the newly elected senators are sworn in, a brief window opens up when the Senate can reform its rules with only 51 votes.

Every two years, when the Senate’s newly-elected members take office, the Constitution opens up a brief window when the Senate’s rules can be changed with just 51 votes — the rules typically require a two-thirds majority to make any changes. Last year, several senators proposed taking advantage of this window to reform the filibuster rule and prevent Senate Republicans from continuing their unprecedented campaign of obstruction of bills and nominees. Ultimately, however, these reforms failed because too many Senate Democrats were unwilling to move forward with them.

Yesterday, in a floor speech, Senate Majority Leader Harry Reid (D-NV) admitted that the reformers were correct, and that the senators who kept the filibuster intact were wrong:

If there ever were a time when Tom Udall and Jeff Merkley were prophetic, it’s tonight. These two young, fine senators said it was time we changed the rules in the Senate, and we didn’t. They were right. The rest of us were wrong — or most of us now anyway. What a shame. So here we are, wasting time because of the Republicans. … And then, to top it off, one of the finest members of the Senate we’ve had, ever, was defeated yesterday by a man, listen to this, Mr. President, who campaigned on the platform that there’s too much compromise in the Senate. And he’s going to come back here and not compromise with anybody on anything. Now that’s what we need in the Senate, more people who are willing to do nothing but fight.

Watch it:

Reid’s frustration with the result in the Indiana GOP Senate primary closely maps concerns that ThinkProgress raised shortly after Tea Party candidate Richard Mourdock defeated long time incumbent Sen. Richard Lugar (R-IN). In the wake of Mourdock’s success running on a platform of uncompromising obstructionism, it is unlikely that any Republican senator will be willing to cross party lines in order to pass even the most essential legislation or to fill crucial jobs such as a seat on the Supreme Court. As Reid now seems to recognize, the choice facing Senate Democrats is whether to dramatically reform the Senate rules or leave America completely unable to govern itself.

Despite their unwillingness to do so last year, however, they will have another opportunity to do so very soon — provided they have at least 51 votes in favor of reform. Next January, when the 113th Congress convenes, another window opens enabling the Senate’s rules to be changed by a simple majority vote.

In 2009, when President Obama was close to the height of his popularity and political capital, only nine Republican senators voted to confirm Justice Sotomayor: Lamar Alexander, Kit Bond, Susan Collins, Lindsay Graham, Judd Gregg, Dick Lugar, Mel Martinez, Olympia Snowe, and George Voinovich. Of these four (Bond, Gregg, Martinez and Voinovich) are now retired. One (Snowe) recently announced her voluntary retirement. And one, Dick Lugar of Indiana, was just involuntarily retired by Tea Party challenger Richard Mourdock.

Lugar is an Indiana institution. He ran virtually unopposed during his last reelection race, and won by more than 30 points the last time a major party candidate tried to challenge him. Had he won yesterday’s primary, he would have been the prohibitive favorite in November (Mourdock, by contrast, could lose in November as easily as he could win). Nor was Lugar particularly moderate. Among other things, Lugar voted for Rep. Paul Ryan’s (R-WI) infamous plan to phase out Medicare.

In the age of the Tea Party, however, even the most occasional departures from conservative orthodoxy are enough for the GOP electorate to declare a public official an apostate. Mourdock made Lugar’s votes for Justices Sotomayor and Kagan, in addition to a handful of other breaks with America’s far right, the focus of his campaign — and that was enough to defeat a 36 year Senate veteran. In light of this incident, it is unlikely that any of the few remaining Republicans who backed an Obama Supreme Court appointee will be willing to risk their careers by doing the same again.

Lest there be any doubt, there is probably no one President Obama could nominate for the high Court who would satisfy the newly radicalized Republican Party. Mourdock, for his part, recently promised to oppose any nominee who did not fit his personal constitutional philosophy — and he twice cited failed Supreme Court nominee and Romney legal advisor Robert Bork as his model nominee. As recently as last October, Bork mocked the very idea that women sometimes face discrimination as “silly,” and he infamously described the federal ban on whites-only lunch counters as “unsurpassed ugliness” early in his career. Obama would never, ever nominate such a man to the Supreme Court.

In other words, if President Obama has the opportunity to nominate a new justice during a second presidential term, it is tough to imagine any set of circumstances that allows that nominee to receive the 60 votes necessary to break a filibuster. The parties are too far apart. The Republicans are too eager to obstruct, and the handful of GOPers with a history of bipartisanship will be too spooked to reach across the aisle. America could go years with one or more Supreme Court seats vacant.

There could be, however, a way out of this trap. In his most recent State of the Union Address, President Obama called on the Senate to “pass a simple rule that all judicial and public servant nominations receive an up or down vote within 90 days” — effectively eliminating the filibuster for Senate-confirmed jobs. Moreover, when the newly-elected Senate reconvenes next January, it opens a very brief window where Obama’s proposed rule could be implemented with just 51 votes.

Should the Democrats manage to hold the Senate next year, an outcome that is much more likely than appeared possible just one year ago, they no longer have the option to maintain the status quo. Keeping the current rules means stripping Obama of his power to nominate Supreme Court justices, and potentially turning the Court over to Mourdock’s fellow ideologues for years to come.

The Hill reports that, in return for a promise that President Obama will not make any recess appointments in the upcoming Senate break, Senate Minority Leader Mitch McConnell (R-KY) agreed to stop obstructing several of the president’s nominees:

“As the result of a successful discussion among the minority leader, the White House and myself there will be no recess appointments during the coming adjournment,” said [Majority Leader Harry] Reid, speaking from the Senate floor.

In return, Republicans allowed passage by unanimous consent of several of President Obama’s noncontroversial nominees and allowed Reid to set up a vote on the confirmation of Stephanie Thacker to be a circuit judge for the Fourth Circuit for April 16, the day the Senate returns from its break.

It is, of course, unfortunate that Reid needs to strike a deal at all before the caucus that controls less than half the seats in the Senate will deign to allow completely noncontroversial nominees to move forward. Nevertheless, this incident proves the wisdom of Obama’s decision to make several recess appointments earlier this year despite McConnell’s objections. Prior to Obama’s actions, he and Reid had few bargaining chips they could use to prevent McConnell’s obstructionism in a Senate ruled by the filibuster. Now, Obama and Reid can use the threat of future recess appointments to ensure that the party that voters did not want to control the Senate does not have a total veto power over the president’s nominees.

In the wake of this week’s deal where Senate Minority Leader Mitch McConnell (R-KY) agreed to stop obstructing 14 of President Obama’s judicial nominees and allow them to be confirmed by early May, Al Kamen runs the numbers on how President Obama’s confirmation rate compares to the rate of confirmations under Presidents Bush and Clinton:

After the Senate acts on the 14 agreed-upon judges, there are eight more already teed up for a full Senate vote. An additional eight are in the Senate Judiciary Committee pipeline. And that panel’s chairman, Sen. Patrick J. Leahy (D-Vt.), says he’ll begin work on 11 more judges in the next few weeks.

That’s a total of 41 potentially approved judges.

If the Senate does, in fact, approve them all, Obama’s number of confirmed judges will stand at 172.

To put that in perspective, by the end of May in their respective first terms, George W. Bush had 175 judges approved, and Bill Clinton had 183.

In other words, even if the Senate were to confirm every single one of Obama’s pending nominees before the end of May — a tall order in the hyper-obstructionist era of Mitch McConnell — the president would still lag three judges behind his immediate predecessor. But, of course, there is no deal currently in place to confirm more than 14 of these nominees, which means the Obama Administration is now on track to be 30 judges behind President Bush absent additional confirmations.

As ThinkProgress previously reported, Senate Majority Leader Harry Reid (D-NV) filed seventeen petitions to break Senate Republican filibusters on as many judges earlier this week. Initially, McConnell reacted to these petitions with an increasingly implausible list of reasons why the Senate could not vote on these nominees right away, before finally admitting that he was opposing the nominees because Reid made Senate Republicans “look bad” by pointing out their obstructionism.

As it turns out, this was not an effective messaging strategy for Mr. McConnell, who has now agreed to allow most of the seventeen judges to move forward:

Senate Majority Leader Harry Reid (D-Nev.) and Minority Leader Mitch McConnell (R-Ky.) announced the agreement on the floor but said they wouldn’t provide any details until they briefed their respective caucuses later in the afternoon. However, aides said the deal will allow Democrats to move 12 district court judges and 2 circuit court judges by May 7.

Now, let’s be clear, this is not a perfect deal. There is absolutely no reason whatsoever why every judge who has cleared the Senate Judiciary Committee could not be confirmed today — and there is certainly no reason why judges who received little if any opposition in committee need to wait as long as May 7. It’s also inexcusable that one of President Obama’s most outstanding nominees, Ninth Circuit nominee Paul Watford, is not on the list of judges being confirmed (a list of the judges is below the jump).

Nevertheless, today’s deal is a massive improvement over the status quo. According to data provided by the Federal Judicial Center, the 112th Congress has confirmed judges at a rate of about 4.75 judges per month. Today’s deal, by contrast, means that fourteen new judges will be confirmed in just two months. This is a significant uptick — even if it is barely enough to make a dent in the 83 currently existing judicial vacancies — and Reid deserves credit for making this happen.

Indeed, there is an important lesson here for Reid and for progressive lawmakers in general. McConnell remains the most obstructionist Senate Leader in recent history, and he has been a constant barrier to ensuring our nation functions effectively from the moment President Obama took office. Nevertheless, we know now that he can be forced to back down. Harry Reid decided to fight this week, and he was rewarded for it. He should remember that fact the next time McConnell stands in the way.
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In an exchange that seems designed to prove why fewer Americans approve of Congress than approve of communism or the BP oil spill, Senate Leaders Harry Reid (D-NV) and Mitch McConnell (R-KY) engaged in a long debate this morning over why Reid is currently trying to break seventeen filibusters of President Obama’s judicial nominees. The exchange culminated with McConnell admitting that, even though all these judges will be confirmed eventually, he is blocking them now because he is upset that Reid’s making him look bad:

REID: I’ve got a great idea. My friend the Republican Leader said these judges are all going to get approved anyway, so I’ve got an idea. Let’s go to this IPO bill immediately after finishing the highway bill, with the agreement that we’ll dispose of these judges immediately after that. . . .

McCONNELL: It is highly unlikely any of these district judges are not going to be confirmed. We’ve done a number of them this year. We’ve done seven this year. District judges are almost never defeated. This is just a very transparent attempt to try to slam dunk the minority and make them look like they are obstructing things they aren’t obstructing. We object to that. We don’t think that meets the standard of civility that should be expected in the Senate. And, so, any effort to make the minority look bad or attempt to slam dunk them that is sort of manufactured as this is is gonna, of course, be greeted with resistance.

Watch it:

Let’s explain what’s going on here. Both Reid and McConnell agree that there is nothing objectionable about these judges — in McConnell’s words, “it is highly unlikely any of these district judges are not going to be confirmed.” Additionally, both men agree that the Senate should vote on the “IPO bill” that Reid refers to, a bill dealing with investments in small businesses that recently passed the House. Initially, Reid wanted to vote on the seventeen judges awaiting confirmation before moving on to the IPO bill, but he even concedes this point — saying that he is willing to “go to this IPO bill” first as McConnell prefers.

And then McConnell says this deal is unacceptable because Reid “ma[de] the minority look bad.”

If this is truly McConnell’s reason for blocking these judges, then he just made an absolutely shocking admission. Thanks to excessive judicial vacancies, America’s courts are increasingly unable to function. In some courts, judges are so overburdened they have to rush major felony cases through as if they involved minor traffic violations. In one court, felony caseloads nearly doubled in just two years. Every court that is unable to handle its caseload means wrongly fired workers waiting months or years for justice and businesses that must delay making new hires until they are sure they won’t be hit with an unwarranted legal judgment. And yet McConnell says he is willing to punish all of these workers and businesses because he is upset that Reid has made him look bad. America can ill afford this kind of tantrum.