On Thursday, the Senate invoked the so-called nuclear option, voting to end the filibuster for most judicial nominees and cabinet appointments. The vote changes a Senate rule that had previously required 60 votes to advance an executive nomination to a confirmation vote, which requires only a simple majority to pass. While the rule change does not affect legislation or Supreme Court nominations, it does have the potential to clear a backlog of nominations and address the increasing number of judicial emergencies created by Republican obstruction.
The 52-48 vote came after Senate Republicans were set to filibuster again the nomination to the D.C. Circuit Court of Appeals of Patricia Millett, a Washington lawyer who has worked in both Republican and Democratic administrations and who is just one of three recent nominees to the D.C. Circuit Court of Appeals blocked by Senate Republicans. Like Millett, the other nominees, including Georgetown Law professor Nina Pillard and D.C. Circuit Judge Robert Wilkins, all have a majority of support in the Senate for confirmation. But Senate Republicans have used the filibuster to block those nominations from advancing while they try desperately to maintain control over both the D.C. Circuit Court of Appeals and the federal judiciary in general.
The impact of the rule change was immediate, as the Senate then voted 55-43 to advance Millett’s nomination. The Senate must now vote for her confirmation, which could happen as early as Friday, or, more likely, after the Thanksgiving recess.
Doug Kendall, president of the Constitutional Accountability Center, a progressive think tank and public interest law firm praised the change in a statement. “The Founders designed our Constitution to be, by and large, a majority-rule document. Senator Reid’s decision today returns to that founding vision, limiting the filibuster which has become an extra-constitutional tool allowing the minority to gum up our democratic process,” said Kendall.
Marge Baker, executive vice president of People for the American Way, praised the move as a means of getting ending the Senate backlog on judicial nominees in a statement. “The fact that there’s now a path forward to the confirmation of these three extraordinarily qualified D.C. Circuit nominees is unquestionably good news,” said Baker. “We are thrilled that President Obama’s D.C. Circuit nominees and the other federal judicial nominees waiting for Senate votes will finally get the fair consideration that they deserve. Senate Republicans have refused to do their jobs for far too long. It’s time to get the Senate working again.”
The move by Senate Democrats is not without risk. Sen. Charles Grassley (R-IA), a key proponent of the strategy to tie up judicial appointments, has already promised that as soon as Republicans control both the White House and the Senate they will eliminate the filibuster for the Supreme Court as well. But Democrats were left with little choice after Senate Republicans made obstruction and nullification their governing strategy. “Republicans’ abuse of Senate rules during this administration has been astounding,” Baker said. “While President Obama has made an effort to work with Republican senators to nominate fair, accomplished judges, Republicans have blocked his nominees at every turn, often for no reason other than the fact that it was President Obama who nominated them.”
According to analysis by the People for the American Way, Republicans were on an unprecedented pace to filibuster at least 40 presidential nominees. And with filibuster abuse just one example of many used by the right to employ this strategy, there was never any guarantee that Grassley’s threat wouldn’t have come true even if Senate Democrats didn’t vote to curb the filibuster. “This irresponsible obstruction is part of a larger effort by Republicans in Congress to nullify laws they don’t like and overturn the results of elections that they lost,” said Baker. “This profoundly anti-democratic approach to governing shut down our federal government, and threatened to shut down our courts.”