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.