After years of trying, Senator Tom Harkin finally got a majority of his colleagues on board with Senate rules reform. Today 52 members of the Democratic caucus voted to curtail the minority's ability to filibuster presidential nominees. The same 52 senators then rejected Minority Leader Mitch McConnell's objection to the ruling from the chair. Just like that, Reid invoked the so-called "nuclear option," which Republicans used to call the "constitutional option" when they flirted with the same rule change in 2006. From now on, only a simple majority of 51 votes will be needed to end debate on a judicial or executive branch nomination--not the 60 votes needed for cloture before today.
A series of Republican filibusters against nominees to the D.C. Circuit Court of Appeals finally pushed Reid to action. Immediately following the rules change, the Senate passed by 55 votes to 43 a cloture motion on the nomination of Patricia Millett, whom Republicans filibustered last month.
Senator Chuck Grassley, the ranking Republican on the Senate Judiciary Committee, vehemently objected to the rules change as a "blatant power grab," while Harkin called for more limits to filibusters that block legislation. Comments from both senators are after the jump. President Barack Obama welcomed the rules change, saying, "I realize neither party has been blameless for these tactics ... But today's pattern of obstruction just isn't normal." But McConnell warned Democrats, "You'll regret this, and you may regret this a lot sooner than you think."
UPDATE: Added more comments from both Harkin and Grassley below. Grassley warned that when his party is in the majority, they will likely remove the filibuster for Supreme Court nominees as well. For the record, Senate Democrats have never filibustered a Republican president's Supreme Court nominee.
Comments from Senator Harkin after today's historic votes:
"This has been escalating for a long period of time and it was time to stop it and that's what we did this morning," Harkin said. "Now we need to take it a step farther and change the filibuster rules on legislation." [...]
"I predict the sky will not fall ... but I do predict that our government will work better," Harkin said.
Harkin said he'd support further rule changes that would prevent a single senator from blocking legislation and protect minority rights by allowing for germane amendment votes.
Harkin press release, November 21:
November 21, 2013
Harkin Joins Effort to Reform the Rules of the Senate
Harkin led the effort beginning in 1995 to break the gridlock; modernize the rules
WASHINGTON, D.C. - Senator Tom Harkin (D-IA), a leading advocate of rules reform in the Senate, today supported an effort to reform the rules and allow qualified nominees to get an up-or-down vote in the Senate. Harkin discussed his work on NPR's All Things Considered yesterday.
"Nearly two decades ago, as a member of the minority party in the U.S. Senate, I argued that reform of the rules was critical for the Senate to be able to respond to the challenges of the day. Since that time, the use of the filibuster has accelerated - to the point where now, even the most routine and mundane business is subjected to the fillister by the minority party. In fact, it has gotten so bad, that Senators now get up and openly say that we are not abiding by the normal '60 vote rule' of the Senate. There is no such rule, but it is becoming the norm.
"While neither party has completely clean hands in this respect, the Republican Party's recent abuse of the filibuster to block qualified nominees is without precedent in the U.S. Senate. If the chamber is to be able to respond to the challenges of the 21st Century, this cannot go on. For that reason, I welcome the Senate's action today and I was proud to support Majority Leader Reid in this vote."
Excerpt from that NPR interview of November 20:
HARKIN: [...] We've got to change these rules. It's gotten to the point where the Senate simply can't function. And quite frankly, it's been both sides, I would admit that, but the majority of it has been on the Republican side lately. And if we don't change the rules, the Senate will simply be unable to do anything.
SIEGEL: Well, let me put you a couple of objections to changing the rules that we hear. One of them is the argument what goes around comes around, which is today, it's the Republicans who are frustrating Democrats who have the Senate majority and the White House, but in a couple of years, Democrats might want to resort to some of these tactics with Republicans in charge. What do you say to that?
HARKIN: What I say to that, Robert, is I'm not afraid of Democracy. I'm not afraid of majority rule as long as the minority has certain rights, the rights to offer amendments. Not the right to win those amendments, but the right to offer those amendments and to have a debate and a vote on those amendments. I've always felt that way. But I do not believe that the minority has some right to absolutely stop everything.
SIEGEL: But, say, if a Supreme Court nominee came up, who would clearly be or was widely assumed to be the fifth vote who would overturn Roe versus Wade, let's say, can't you imagine pro-choice Democrats wanting to, in some way, block that nomination?
HARKIN: Well, I'm sure that they would, a pro-choice Democrat want to block that. But I don't think that pro-choice Democrat should have that absolute right to do that. If people vote for a Republican president that's going to nominate someone to the Supreme Court to overturn Roe v. Wade, listen, elections should have consequences. People should know, if they're going to vote that way, they better expect the results.
UPDATE: Video of Harkin's comments after Reid invoked the "nuclear option":
Grassley's floor speech (as prepared) after the votes curtailing the filibuster:
For Immediate Release
November 21, 2013
Doing Whatever It Takes - Majority Changes the Senate Rules
Prepared Floor Statement of Senator Chuck Grassley
Ranking Member, Senate Committee on the Judiciary
On the Majority's Change to the Senate Rules
Thursday, November 21, 2013
I'd like to spend a few minutes discussing the Majority Leader's employment of the so-called "Nuclear Option."
Unfortunately, this isn't a new threat. Over the last several years, every time the Minority has chosen to exercise its rights under the Senate Rules, the Majority has threatened to change the Senate rules. In fact, this is the third time in just the last year or so that the Majority Leader has said if he didn't get his way on nominations, he'd change the rules.
Ironically, that's about as many judicial nominees as our side has stopped with the filibuster.
Prior to the recent attempt by the President to simultaneously add three judges to the D.C. Circuit that aren't needed, Republicans had stopped a grand total of two of President Obama's judicial nominees.
Not 10, as the Democrats had done by President Bush's 5th year in office.
Not 34, as one of my colleagues tried to suggest earlier this week.
And if you include the nominees for the D.C. Circuit, we've stopped a grand total of 5.
Again, not 10 as the Democrats had done by 2005.
Not 34, as one of my colleagues tried to argue earlier this week. 5.
During that same time we've confirmed 209 lower court Article III judges. That's a record of 209 to 5.
So this threat isn't based on a "crisis." There is no crisis.
I'd note that today's Wall Street Journal editorial, entitled "D.C. Circuit Breakers, 'The White House wants to pack a court whose judges are underworked,'" lays out the caseload pretty clearly. And I'd ask that this editorial be made part of the record.
So, this is about a naked power grab, and nothing more. This is about the other side not getting everything they want, when they want it.
Now, the other side claims that they have been pushed to this point because our side objected to the President's plan to fill the D.C. Circuit with judges it doesn't need.
But the other side tends to forget history, so let's review how we got here.
After the President simultaneously nominated 3 nominees for the D.C. Circuit that aren't needed - a blatant political power grab in its own right - what did Republicans do? Well, we did something quite simple. We said we'd hold Democrats to the same standard they established in 2006 when they blocked Peter Keisler.
So let's be clear about why the Democrats are "outraged."
Democrats are "outraged" because Republicans actually had the temerity to hold them to a standard they established. And because we did, because we insisted that we all play by the same rules, they've come right back and said, 'then we'll change the rules.'
The other side has said, in effect, 'we don't want to be held to the standard we established in 2006.' And not only that, but if you don't give us what we want, we are willing to forever change the Senate.
Now, we hear a lot of ultimatums around here. But this ultimatum is not run-of-the-mill. It's different.
It's different because this threat is designed to hold the United States Senate hostage.
It's different because it's designed to hold hostage all of the Senate's history and traditions.
It's different because, to be effective, it relies on the good will of Senators who don't want to see the Senate as we know it destroyed.
Now, I'd note that today's Majority didn't always feel the way they do today.
Not too many years ago, my colleagues on the other side described their fight to preserve the filibuster with great pride.
For instance, in 2006 one of my colleagues on the other side said it this way:
"The nuclear option was the most important issue I have worked on in my public life. Its rejection was my proudest moment as minority leader. I emerged from the episode with a renewed appreciation for the majesty of Senate rules. As majority leader, I intend to run the Senate with respect for the rules and for the minority rights the rules protect."
In 2005, another of my Democrat colleagues had this to say:
"Today, Republicans are threatening to take away one of the few remaining checks on the power of the executive branch by their use of what has become known as the nuclear option. This assault on our tradition of checks and balances and on the protection of minority rights in the Senate and in our democracy should be abandoned.
Eliminating the filibuster by the nuclear option would destroy the Constitution's design of the Senate as an effective check on the executive."
And then there was this, from the late Senator Byrd in 2005:
"And I detest this mention of a nuclear option, the constitutional option. There is nothing constitutional about it, nothing."
But of course, that was back when today's Majority was in the Minority, and there was a Republican in the White House.
Today, the shoe is on the other foot. Today, the other side is willing to forever change the Senate because Republicans have the audacity to hold them to their own standard.
But why? Why would the other side be willing to do this?
There clearly isn't a crisis on the D.C. Circuit. The judges themselves say if we confirmed any more judges, there wouldn't be enough work to go around.
And it's not as if all of these nominees are mainstream, consensus picks, despite what the other side would have you believe. Take Professor Pillard, for instance.
She has written this about motherhood:
"reproductive rights, including rights to contraception and abortion, play a central role in freeing women from historically routine conscription into maternity."
Is that mainstream?
She has also argued this about motherhood:
"Antiabortion laws and other restraints on reproductive freedom not only enforce women's incubation of unwanted pregnancies, but also prescribe a 'vision of the woman's role' as mother and caretaker of children in a way that is at odds with equal protection."
Is that mainstream?
And what about her views on religious freedom? She argued that the Supreme Court case of Hosanna-Tabor Evangelical Lutheran Church, which challenged the so-called "ministerial exception" to employment discrimination, represented a "substantial threat to the American rule of law."
The Supreme Court rejected her view 9-0. 9-0. And the Court held that "it is impermissible for the government to contradict a church's determination of who can act as its ministers."
Do my colleagues really believe mainstream America thinks churches shouldn't be allowed to choose their own ministers?
I could go on, but you get the picture.
The point is this: any vote to change the Senate rules is a vote to remove one of the last meaningful checks on the President, and that vote would put these views on this important court.
So I ask again, why would the other side do this?
It is nothing short of a complete and total power grab.
It is the type of thing we've seen again and again out of this administration and their Senate allies.
And you can sum it up this way: Do whatever it takes.
-You can't get Obamacare passed with Republican support?
- Do whatever it takes: Pass it at 7 a.m. on Christmas Eve with just Democrat votes.
-You can't get all of your side to support Obamacare?
- Do whatever it takes: Resort to the "cornhusker kickback."
-You lose your 60th Senate vote on Obamacare due to a special election?
- Do whatever it takes: Ram it through anyway using reconciliation.
-The American people don't want to be taxed for not buying healthcare?
- Do whatever it takes: Tell the American people it isn't a tax, and then argue in court that it IS.
-The American people want to keep their healthcare?
- Do whatever it takes: Promise them "if you like your healthcare you can keep it," then issue regulations making it impossible.
-Your big labor allies want out from under Obamacare?
- Do whatever it takes: Consider issuing them a waiver from the reinsurance tax.
-You can't find consensus nominees for the National Labor Relations Board?
- Do whatever it takes: Recess-appoint them when the Senate isn't even in recess.
-You can't convince Congress to adopt your gun control agenda?
- Do whatever it takes: Issue some Executive Orders.
-You can't convince moderate Democrats to support Cap and Trade fee increases?
- Do whatever it takes: Do the same thing through EPA regulation.
-Frustrated that conservative groups' political speech is protected under the First Amendment?
- Do whatever it takes: Use the IRS to harass and intimidate those same conservative groups.
-Frustrated when the court stands up for religious freedom and issues a check on the Obamacare contraception mandate?
- Do whatever it takes: Stack the D.C. Circuit in your favor.
Frustrated when the court curbs your power on recessappointments?
- Do whatever it takes: Stack the D.C. Circuit in your favor.
-Worried EPA's regulations on Cap and Trade fee increases might get challenged in court?
- Do whatever it takes: Stack the D.C. Circuit in your favor.
-Frustrated because Senate Republicans have the nerve to hold you to the same standard you established during the last Administration?
- Do. Whatever. It. Takes.
-Change the rules of the United States Senate.
Mr. President, that's what we have witnessed today. This is an absolute power grab.
The Majority in the Senate and their allies in the Administration are willing to do whatever it takes to achieve their partisan agenda.
They know there will be additional challenges to Obamacare.
They know if they can stack the deck on the D.C. Circuit, they can remove one of the last remaining checks on presidential power.
But make no mistake. My friends on the other side will have to answer this question: Why did you choose this moment to break the rules to change the rules?
Why, when we are witnessing the collapse of this massive effort to centrally plan 1/6th of this wonderful Nation's economy?
Why, when millions of Americans are losing their healthcare?
Why did you choose this moment to hand the keys to the kingdom over to the President?
Because the fact of the matter is this: any vote to break the rules to change the rules is a vote to ensure Obamacare remains intact.
So, Mr. President, I'll conclude by saying this.
Changing the rules of the Senate in this way was a mistake.
But if the last several years have taught us anything, it's that the Majority won't stop making these demands.
And we can't give in to these constant threats.
Sooner or later, you have to stand up and say 'enough is enough.'
But, if there is one thing that will always be true, it's this: Majorities are fickle. Majorities are fleeting.
Here today. Gone tomorrow.
That's a lesson that sadly, most of my colleagues on the other side of the aisle haven't learned, for the simple reason that they've never served a single day in the Minority.
So the Majority has chosen to take us down this path, the silver lining is that there will come a day when the roles are reversed.
When that happens, our side will likely nominate and confirm lower court and Supreme Court nominees with 51 votes, regardless of whether the Democrats actually buy into this fanciful notion that they can demolish the filibuster on lower court nominees and still preserve it for Supreme Court nominees.
I yield the floor.
Grassley press release, November 20:
Majority Leader Threatens Nuclear Option
Senator Chuck Grassley, Ranking Member of the Senate Judiciary Committee, made the following statement about the Majority Leader's threat to invoke the so-called nuclear option on judicial nominations.
"It appears the Majority Leader is now trying to convince his caucus that somehow he'd be able to change the rules on judicial nominees, but limit the change to only lower court nominees. This is a difference without a distinction. If he changes the rules for some judicial nominees, he is effectively changing them for all judicial nominees, including the Supreme Court. Apparently the other side wants to change the rules while still preserving the ability to block a Republican President's ability to replace a liberal Supreme Court Justice with an originalist.
"I find it hard to believe members of the Majority Leader's caucus would actually believe they could change the rules on lower court nominees, and then turn around and filibuster a future Republican President's Supreme Court nominee."
Grassley floor statement, November 20:
Setting the Record Straight on Judicial Nominations - Again
Nomination of David Barron, to be United States Circuit Judge for the First Circuit
Prepared Statement of Senator Chuck Grassley of Iowa
Ranking Member, Senate Committee on the Judiciary
Hearing Regarding the Nomination of:
David Jeremiah Barron, to be United States Circuit Judge for the First Circuit
Wednesday, November 20, 2013
Today, we are holding the 17th judicial nominations hearing of the year, during which we will have considered a total of 58 judicial nominees. I would note this is the fourth nominations hearing in four weeks. So anyone who says Republicans are engaging in "unprecedented" obstruction is ignoring the cooperation I have shown as Ranking Member of this committee.
Compare the record on hearings for President Obama this year with how President Bush was treated during the fifth year of his Presidency.
In 2005, the final judicial nomination hearing was held on November 15th. That wasn't the 17th hearing of the year, but only the sixth hearing on lower court judges. During those six hearings we heard from not 58 judicial nominees, but only 15 district and circuit nominees.
How are we doing this year compared to last year? 2012 was a very productive year for judicial nominations. In fact, in the 112th Congress, President Obama had more district judges confirmed than were confirmed in any of the previous 8 Congresses. Our work in Committee last year contributed to that accomplishment when we held 10 hearings for 41 judicial nominees.
In addition, let me remind everyone that we have now confirmed 38 lower court Article 3 judicial nominees this year. That is more than two and a half times the number confirmed at a similar stage in President Bush's second term, when only 14 district and circuit nominees had been confirmed.
In total, the Senate has confirmed 209 lower court Article 3 judges. This includes a significant number of women and minority nominees. We could have confirmed more judges over the last couple of weeks. But the Senate majority decided to take precious Senate floor time for a diversionary political exercise, rather than confirming additional judges.
Now, as I explained earlier this week, the other side has been working diligently to manufacture a crisis on the D.C. Circuit. And in order to support their claim that Republicans are "obstructing" nominees, it appears the other side is doing a sleight-of-hand on the data as well.
Recently, one of my colleagues stated that Senate Republicans have filibustered 34 of President Obama's nominees. Anyone who pays attention to these things knows that Republicans have "filibustered" only a handful of nominees. So what is going on here? How does the other side get to 34?
To begin with, fully one-half of these cloture petitions were filed by the Majority on one day, as a procedural gimmick and were totally unnecessary. None of those 17 cloture petitions required a vote - every cloture petition was withdrawn. And, every single one of those nominees was confirmed. So that was just another manufactured crisis.
That leaves 17. But Republicans haven't filibustered anywhere close to 17 nominees. So again, what is the real story here?
Of the remaining 17 cloture petitions, six of those were also withdrawn. That leaves only 11 nominees who have actually faced a cloture vote. One of those nominees had 2 cloture votes, for a total of 12 cloture votes.
Yet, six of those 11 nominees were confirmed. That leaves only 5 nominees who have failed to achieve cloture.
So to sum up, the Majority claimed earlier this week, with great fanfare, that Republicans had "filibustered" 34 nominees, when we've actually stopped 5 nominees. And of those 5, three are still pending in the Senate, leaving only 2 nominees actually defeated by filibuster.
I suppose that's what one is required to do in order to try to overstate the record established during this administration with the record the Democrats established during the Bush years.
During the Bush administration, Senate Democrats truly were unprecedented in their use of cloture against judicial nominees. In fact, they forced 30 cloture votes on judicial nominees, including a Supreme Court nominee.
So that is the factual record - 30 cloture votes during the Bush Administration, 12 cloture votes during President Obama's term.
Of those 30 cloture votes faced by President Bush's nominees, Senate Democrats obstructed nominees 20 times.
Let me emphasize this point - during the Bush administration, 20 cloture motions failed. Senate Democrats continued to obstruct judicial nominees twenty times.
So I think it is clear which party holds the record on delaying or obstructing the confirmation of judges. The number of cloture votes demanded by Senate Democrats on President Bush's nominees is 2 and a half times the number of cloture votes on President Obama's nominees. The number of times Senate Democrats refused to end debate is nearly 3 times what Republicans have done. Democrats clearly hold the record on delaying and obstructing judges.
I think we have treated President Obama in a fair manner, and he enjoys an outstanding record for his judicial nominees.
One final point on this baseless charge that Republican obstruction has left the federal judiciary with high vacancies. The fact is, President Obama's initial delay in nominations was the primary factor in the lower number of confirmations during his first term, resulting in the high number of vacancies.
Even now, 42 of 93 vacancies have no nominee. That is 45 percent of vacancies with no pending nomination before the Senate. While this percentage recently has been reduced, it was the case for most of the Obama presidency that the majority of vacancies had no nominee. Of the 38 "Judicial Emergencies", 18 have no nominee. That is 47 percent.
The Senate can't be held responsible for these vacancies, where almost half the seats have no nominee.
Having set the record straight let me now address today's nomination. I welcome the nominee, his family and guests. This nomination has been pending before the Senate just 55 calendar days. I would note that President Bush's Circuit nominees waited, on average, 246 days for a hearing, more than four times the wait for this nominee.
Mr. Barron has an extensive record as an academic. He has written on a wide range of subjects. I think it would be fair to say that I probably don't agree with much of what he has written. But that isn't necessarily the standard for my review of his qualifications to sit on the federal bench.
I am interested in hearing his views on Executive Authority; on his work while at the Office of Legal Counsel; on his judicial philosophy, particularly what he calls "progressive constitutional outcomes"; and on a variety of other topics. I expect to address some of these today and will likely have a significant number of written questions as well. I thank the chair.