Senator William “Mo” Cowan (D-MA), the most junior member of the U.S. Senate, has only been in office for about three-and-a-half months, but has already witnessed minority obstruction of on background check legislation, a measure to mitigate budget sequestration, and nominations for Secretary of Defense, Secretary of Labor, CIA director, EPA administrator, and federal judges. In an exclusive interview Wednesday, Cowan told ThinkProgress that the Senate’s requirement for a three-fifths super-majority needs to be eliminated.

Noting that he was stunned to learn, on his arrival in the Senate, of the “60 vote majority” needed to do business in 100-member Senate, Cowan said the rules need to be fixed:

COWAN: My view on it is this: I appreciate and respect the rules and the negotiations that led to that, but it’s currently getting in the way of too much of what we’re trying to get done — and need to get done. I think that when they’re important issues, be it nominations or legislation… that we need to have a chance to have votes, get to the issues, have real debate, and make decisions. I respect the role of the minority, I don’t believe in the majority rolling over the minority, but I don’t believe that’s what you get with a 50-vote threshold.

Noting that he does not believe there is any discriminatory intent, Cowan added that the effect of Senate Republican obstruction could be preventing diversity in government — such as stalled Labor Secretary-nominee Tom Perez. He added that the 60-vote threshold is “keeping the Senate from functioning effectively and efficiently in the work the American people need [it] to do.

Listen to the audio:

Appointed to the Senate by Gov. Deval Patrick (D-MA) to temporarily fill the vacant seat of Secretary of State John Kerry, Cowan brings a unique perspective: he has never run for the office and is not a candidate for election. On June 25, Bay State voters will elect a new Senator to fill the remaining 18 months of Kerry’s term. Kerry had been hesitant about cloture reform.

Senate Majority Leader Harry Reid (D-NV) is reportedly considering a move prevent a minority of Senators from blocking confirmation of presidential appointees.

Senate Majority Leader Harry Reid (D-NV) expects a showdown in July over a potential second round of filibuster reform, and he’s prepared to push for a sweeping change to the minority’s ability to unilaterally obstruct judges and other nominees. According to reporting by the Washington Post’s Greg Sargent, Reid “is eyeing a change to the rules that would do away with the 60-vote threshold on all judicial and executive branch nominations.” The test, according to Sargent, of whether Reid will push this reform is whether Senate Republicans lift their blockades on Consumer Financial Protection Bureau Director Richard Cordray, Labor Secretary nominee Tom Perez, and Environmental Protection Agency leader-in-waiting Gina McCarthy.

 

While Reid’s apparent willingness to press serious filibuster reform is welcome, he made similar statements during the lead up to a debate over filibuster reform last January. That debate ultimately led to a weak package of reforms and a victory for Republicans. A minority of Senate Democrats, lead by Sen. Carl Levin (D-MI), refused to support reforms that would enable the Senate to function in the face of a determined obstructionist minority.

This time around, however, there are two reasons why Reid may be successful in pulling together the 51 votes necessary to achieve real reform. The first is the simple fact that Levin is retiring, so he can no longer approach colleagues as a powerful committee chair who could potentially influence the fate of their bills for years. Beyond that, a key Democratic ally is now facing what could potentially be an existential threat. Two Republican courts held that President Obama’s recess appointments to the National Labor Relations Board (NLRB) are not valid, and if these decisions are upheld it will completely disable the NLRB’s ability to function. Without the NLRB, the backbone of federal labor law will become completely unenforceable — and with it, the right to organize could effectively cease to exist so long as Senate Republicans block new appointments to the Board. Unless, of course, Senate Democrats take away the ability to block confirmations via a filibuster.

The Senate’s filibuster rules gave the minority party power to shut down all judicial confirmations for much of 2012, and — if a Republican court’s decision eviscerating the recess appointments power is upheld — to effectively repeal two federal agencies. Over 90 percent of the country supports expanding background checks, but the Senate’s filibuster rules allowed a minority of the Senate to kill them.

And yet, even if the filibuster were abolished tomorrow, the the Senate’s broken rules would still provide Senate minorities with numerous opportunities to block progress. Consider the Senate GOP’s treatment of Environmental Protection Agency nominee Gina McCarthy last week:

Because Ms. Boxer’s committee was unable to hold a vote on Ms. McCarthy’s nomination — its rules state that at least two members of the minority party must be present for a quorum — she says she will use her own procedural trick.

It works like this: even if every member of the minority party is absent, committees can hold votes if all members of the majority are present. This has been a problem for Democrats because one committee member in their party, Frank R. Lautenberg of New Jersey, is ill and has not been in Washington in recent weeks.

So Mr. Lautenberg plans to travel to Washington on Thursday to give Democrats the quorum they need to force a vote that pushes Ms. McCarthy’s nomination to the Senate floor.

In case that’s not clear, the minority can bottle up McCarthy’s nomination in committee simply by refusing to show up. In order to defeat this, the majority must rouse a sick, elderly man from his convalescence and ensure that he is physically present in a Senate committee room. And this is what passes for legislative procedure in the world’s most powerful nation.

Senate Republicans used a similarly arcane tactic to delay a committee vote on Labor Secretary nominee Tom Perez last week. Under the Senate’s rules, “when the Senate is in session, no committee of the Senate or any subcommittee thereof may meet, without special leave, after the conclusion of the first two hours after the meeting of the Senate commenced and in no case after two o’clock postmeridian unless consent therefore has been obtained from the majority leader and the minority leader.” Accordingly, Senate Republicans were able to block a committee vote on Perez’s nomination simply because it was scheduled in the afternoon.

Similarly, Sen. Dean Heller (R-NV) unilaterally blocked Judge Elissa Cadish’s nomination to a federal judgeship last March by invoking a Judiciary Committee procedure that allows just one senator to block a judicial nominee so long as that nominee is from their home state. Heller objected to the fact that Cadish accurately described the state of Second Amendment law prior to a Supreme Court decision that made the law more favorable to the NRA’s views.

So, while filibuster reform is essential in the wake of unprecedented obstruction of cabinet-level nominees and similar tactics, it is not sufficient in and of itself. The Senate’s rules and the rules governing its various committees are pervasively broken, and require a complete overhaul to prevent future obstruction.

Judge Jane Kelly, who was unanimously confirmed to the United States Court of Appeals for the Eighth Circuit yesterday, is among President Obama’s most outstanding nominees. She graduated from Harvard Law School, clerked for a U.S Court of Appeals judge, and then spent the rest of her career in public service working as a public defender. She’s also young. Young enough that she could be a potential Supreme Court nominee for at least two full presidential terms. In other words, she’s exactly the sort of nominee Senate Republicans love to filibuster — a brilliant attorney with a left-leaning resume who could someday be nominated to the Supreme Court of the United States.

As it turns out, however, obstructionism can be overcome if the right person writes a letter on your behalf to the highest ranking Republican on the Senate Judiciary Committee:

With [Sen. Chuck] Grassley in a University of Iowa Hospital bed, a Republican county chairman and small-town lawyer named David Hansen went out and campaigned for him, the senator explained at Kelly’s confirmation hearing in February. “And you know, you don’t find county chairman doing that that often in our state,” Grassley said. “I won that primary and won that election obviously, and he gets all the credit for it.”

Once in office, Grassley remembered the effort. Grassley says he twice suggested Hansen for federal bench positions: first to the U.S. District Court for the Northern District of Iowa during the Reagan administration and then to the Eighth Circuit during the George H.W. Bush administration. “He’s been a friend of mine as well,” Grassley said of Hansen, now an Eighth Circuit senior judge, on the Senate floor Wednesday.

The connection to Kelly’s nomination: She clerked in the Eighth Circuit for Hansen during 1992 and 1993. Hansen sent Grassley a hand-written note supporting Kelly, noting that she has an “exceptionally keen intellect” and “will be a welcome addition to the court if confirmed.”

Now, let’s be clear. It is fantastic news that Kelly is now a judge. Beyond the fact that she is talented and that she adds another name to the short list of potential Supreme Court nominees in a Democratic administration, former public defenders are very rare on the federal bench (by contrast, President Obama nominated 100 former prosecutors to be federal judges). Judge Kelly earned her seat on the U.S. Court of Appeals through hard work and solid legal work, and the fact that her former boss testified to her “exceptionally keen intellect” is just one more data point demonstrating that she belongs on the bench.

But a person shouldn’t have to be friends with a guy who is friends with Chuck Grassley in order to avoid a grueling confirmation process. Thanks in large part to Grassley’s intervention, Kelly was confirmed just 83 days after her nomination. The average even for uncontroversial Obama nominees is 272 days. And, of course, it remains likely that a person with Kelly’s credentials would have been filibustered if it were not for her former boss’ connection to Grassley — just as other, potential future Supreme Court nominees have been filibustered in the past.

Ultimately, however, the arbitrariness of Senate obstructionism does not have to remain a reality forever. Senate Democrats can eliminate this problem by changing the filibuster and “blue slip” rules that allow a minority of the Senate to block exceptionally qualified judicial nominees.

Yesterday the Senate voted 54-46 in favor of a provision that would expand background checks for gun sales, which, in the bizarro world of the United States Senate, means that the provision fails. Under the Senate’s broken rules, it takes 60 votes to do virtually anything.

As Jonathan Cohn and Eric Kingsbury point out, this result is even more anti-democratic than it appears at first glance. “If you assume, for sake of argument, each senator represents half of his or her state’s population, then senators voting for the bill represented about 194 million people, while the senators voting against the bill represented about 118 million people. That’s getting close to a two-thirds majority in favor of the measure.”

To put this in perspective, Wyoming Sens. Mike Enzi (R) and John Barrasso (R) both voted against the gun safety provision. Together, they represent a little more than half a million people. California Sens. Dianne Feinstein (D) and Barbara Boxer (D) both voted for gun safety. They represent over 38 million Americans. In other words, a voter in Wyoming enjoys 66 times as much representation in the Senate as a voter in California.

As the least populous state, Wyoming makes out like bandits when it comes to Senate representation, but they are far from alone in enjoying such a windfall. A voter in Idaho (population 1,595,728) counts as almost 24 Californians. A voter in Nebraska (population 1,845,525) counts as nearly 21 Californians. And a voter in North Dakota (population 699,628) counts as more than 54 Californians. Indeed, if you add up the combined populations of Wyoming, North Dakota, Alaska, Idaho, Nebraska, Utah, Kansas, Arkansas, Mississippi, Oklahoma, Kentucky, South Carolina, and Alabama, that still adds up to over 3 million fewer people than live in the state of California. That also adds up to 26 senators, all of whom opposed background checks.

The original Constitution created the Senate as the malapportioned body we live under today, but subsequent amendments cast serious doubt on whether the Senate still comports with our constitutional values. The Fourteenth Amendment guarantees every person “the equal protection of the laws,” a guarantee that’s since been incorporated into the protections all Americans enjoy against both states and the federal government. Moreover, as the Supreme Court explained in its landmark “one person, one vote” case, the promise of equal protection of the law includes the right to have your vote count exactly the same as anyone else’s vote. It is difficult to square the Senate with the Constitution’s one person, one vote guarantee.

Except that there’s one serious obstacle in the way of bringing the Senate in line with one person, one vote. Article V of the Constitution, which explains how constitutional amendments can be ratified, provides that “no state, without its consent, shall be deprived of its equal suffrage in the Senate.” In other words, the only way to reapportion the Senate is to pass two constitutional amendments: the first to remove the ban on amendments that end Senate malapportionment, and the second to actually end Senate malapportionment. And, of course, three-quarters of the states are required to ratify an amendment before it is written into the Constitution — ensuring that at least a few states would have to sign away their overrepresentation in the Senate in order to end overrepresentation in the Senate.

Center for American Progress Action Fund intern Jacqueline Odum contributed research to this post.

As ThinkProgress has previously explained, the United States Court of Appeals for the District of Columbia Circuit is the second most powerful court in the country. It’s also a bastion of right-wing jurisprudence thanks in no small part to Senate Republican filibusters. Two George W. Bush appointees on this court recently struck down clean air regulations that would have prevented “between 13,000 and 34,000 premature deaths, 15,000 non-fatal heart attacks, 19,000 hospital and emergency room visits and 1.8 million days of missed work or school for each year.” Three conservative members of the court handed down a decision earlier this year that would make much of American labor law completely unenforceable, and render an important agency created to check Wall Street impotent to boot. At least two of the Court’s judges believe that all business, workplace or Wall Street regulation is constitutionally suspect.

Time, however, is a harsh mistress, and several of the court’s older Republican appointees have taken partial retirement in the last several years. As a result, this court that once boasted one of the most lopsided lineups in the country now is split 4-3 between Democratic and Republican appointees. Moreover, the Senate Judiciary Committee held a hearing Wednesday on the nomination of Sri Srinivasan to the DC Circuit, a nominee brimming with conservative endorsers and past jobs working for Republican judges and administrations. If Srinivasan is confirmed, Republican-appointees will no longer have a majority among the active judges on the nation’s second-highest court. If another Obama nominee is confirmed to one of the three remaining vacancies, Republican-appointees will be in the minority.

Which explains why Sen. Chuck Grassley (R-IA) used Srinivasan’s hearing to introduce legislation ensuring that this won’t happen:

I would like to spend a couple minutes discussing the D.C. Circuit. As most of my colleagues know, the D.C. Circuit is the least busy circuit in the country. In fact, it ranks last or almost last in nearly every category that measures workload.

Based on the 2012 statistics from the Administrative Office of the U.S. Courts, the D.C. Circuit has the fewest number of appeals filed per authorized judgeship, with 108. By way of comparison, the 11th Circuit ranks first with over 5 times as many appeals filed per authorized judgeship, with 583. . . . Given this imbalance in workload, today I am introducing the Court Efficiency Act. A number of my colleagues are co-sponsoring the legislation, including Senators Hatch, Sessions, Graham, Cornyn, Lee, Cruz and Flake.

This legislation is straightforward. It would add a seat to the Second and the Eleventh Circuits. At the same time, it would reduce the number of authorized judgeships for the D.C. Circuit from 11 to 8.

While it is true that the DC Circuit’s caseload is relatively small in terms of raw numbers, Grassley’s statistics are highly misleading. Unlike other federal courts of appeal, the DC Circuit hears an unusually large number of major regulatory and national security cases, many of which require very specialized legal research, involve intensely long records, and take more time for a judge to process than four or five normal cases of the kinds heard in other circuits. The caseloads outside of the DC Circuit include many routine sentencing, immigration and other cases of the kinds that are often dispatched with in brief orders drafted by staff attorneys (who then have these orders approved by judges). The DC Circuit, by contrast, hears far fewer of these easy cases that require very little work on the part of judges.

Indeed, it’s likely that even Chuck Grassley understands that Chuck Grassley’s numbers are misleading. In 2005, Grassley voted to confirm Judge Janice Rogers Brown, a Bush appointee to the DC Circuit. Brown was the tenth active judge on the DC Circuit when she took her seat. Shortly thereafter, Grassley voted to confirm Judge Thomas Griffith. Griffith was the eleventh active judge on the DC Circuit at the time of his confirmation.

Now that President Obama is naming judges, however, Grassley suddenly thinks the DC Circuit is so underworked that it needs just eight judges. This isn’t credible. If Grassley tries to use this excuse in the future to block an Obama nominee to the DC Circuit, Senate Democrats can respond by nuking the filibuster and making Grassley’s transparently self-serving views irrelevant.

In an interview with a public radio station in Nevada Friday, Senate Majority Leader Harry Reid (D-NV) indicated that the weak-tea filibuster reforms Senate Republicans agreed to last January may not be the last round of reforms during the current Congress — at least if Senate Republicans continue to filibuster judges without good reason or consequence. During the interview, Reid threatened to invoke a process championed by Senate Republicans in 2005 in order to change the Senate’s broken rules and end conservative roadblocks against judicial confirmations:

“All within the sound of my voice, including my Democratic senators and the Republican senators who I serve with, should understand that we as a body have the power on any given day to change the rules with a simple majority, and I will do that if necessary,” Reid said on Nevada Public Radio.

Reid last year adopted the position that rules could be changed using a simple majority — instead of a filibuster-proof majority — if done on the first day of the legislative session. But these recent comments appear to signal that he believes he has an even broader ability to reshape the chamber’s rules. . . . “I’m a very patient man. Last Congress and this Congress, we had the opportunity to make some big changes. We made changes, but the time will tell whether they’re big enough. I’m going to wait and build a case,” Reid said. “If the Republicans in the Senate don’t start approving some judges and don’t start helping get some of these nominations done, then we’re going to have to take more action.”

It is certainly good news that Reid appears willing to push more serious filibuster reforms through the Senate, but the ultimate test is whether he and 50 of his Senate colleagues have the resolve to actually pull the trigger on rules changes if Senate Republicans continue to erect barriers to judicial confirmation.

The last time this drama played out, with Democrats and Republicans each playing the opposite role, President Bush nominated several unusually ideological judges to federal appeals courts. These included Priscillia Owen, who took thousands of dollars worth of campaign contributions from Enron when she sat on the Texas Supreme Court, and then wrote an opinion reducing Enron’s taxes by $15 million. And Janice Rogers Brown, who compared liberalism to “slavery” and court decisions upholding the New Deal to a “socialist revolution” before joining the federal bench, and who wrote an opinion suggesting that all labor, business or Wall Street regulation is constitutionally suspect last year.

Nevertheless, few people doubted in 2005 that Senate Republicans were prepared to nuke the filibuster in order to confirm Bush’s slate of nominees, and seven Democratic senators eventually capitulated almost entirely to Republican demands and allowed both Owen and Brown to be confirmed in order to preserve the filibuster. In light of the Senate GOP’s effective use of that filibuster to block much of President Obama’s agenda and nominees, this capitulation now looks even more ill-considered in hindsight than it did at the time it occurred.

President Obama has never nominated anyone as far to the left as Judge Brown is to the right — indeed, it is not clear that anyone other than an avowed communist would fit that bill. Nevertheless, there is a lesson in the 2005 fight that made Brown a federal judge that Reid should take to heart: the best chance of convincing enough Senate Republicans to break with their party and stop filibustering Obama’s judicial nominees is for Reid to first convince them that he will pull the trigger on major rules reform unless they stop hindering the confirmation process.

And if Senate Republicans try to call Reid’s bluff by filibustering another nominee, Reid must show that he wasn’t bluffing.