Sen. Mo Cowan (D-MA)

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.

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.

These two men represent 0.18 percent of the country, and have 2 percent of the Senate's votes

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.