- Life in the Senate plays out predictably in the 21st century. It serves as the older sibling to the House, coming off as more logical and responsible by comparison, but when the Senate carries out duties that are its sole purview, it proves that the two legislative bodies share the same DNA. Yes, we're talking about the confirmation process for executive appointments.
- It's the same nearly every time. Obama nominates someone to fill a vacancy in his administration. Republicans in the Senate accuse said nominee of being a raging lunatic liable to run naked around the Lincoln Memorial when not turning the United States into a Pastafarian commune. Then, they filibuster. The nominee sadly retreats. Democrats complain that Republicans are the worst, and threaten to nuke the filibuster. Lather, rinse, and repeat.
- It's not a new phenomenon. Senate Democrats in the minority during the Bush years were also loath to confirm conservative nominees, but they were a bit more discerning with their disdain. With court appointments, definitely the most fractious battlefield in executive appointments, President Bush had 91 percent of his nominations approved. Seventy-six percent of President Obama's judicial nominees have been appointed.
- Obama has never had a nominee appointed to the U.S. Court of Appeals, which currently only has seven of its 11 seats filled. That's the worst vacancy rate in the court's history, and worse than any other federal circuit court vacancy rate around the country.
- Obama has some fault in all this too. Those on the left have been raging about the pace of his nomination and vetting process for years. Robert Kuttner summed up the problem in late 2012: "The slow pace and resulting backlog served to embolden Republicans. The pile-up weakened the Administration’s hand, creating pressures to expedite confirmations by sending up bland candidates. By failing to make appointments at an adequate pace, and then backing off when he encountered resistance, Obama helped enable the Republican obstruction."
- The Court of Appeals is considered the second most important court in the country too. Cases on Watergate and the Iran-Contra affair played out there, and it's a reliable farm team for the Supreme Court—John Roberts, Antonin Scalia, Clarence Thomas, and Ruth Bader Ginsberg all put in time at Appeals before landing the most tony job in the American legal profession.
- After an exceptionally trying month of nomination hearings, with Republicans blocking three Court of Appeals nominees in a row, Democrats were getting antsy to deploy the nuclear option.
- And today, Senate Majority Leader Harry Reid finally triggered the first major change to filibuster procedure since 1975. It passed 52-48.
- Let the confirmations commence!
- Senate Minority Leader Mitch McConnell was not pleased, and had some ominous words for the rebels messing with Senate tradition: “Some of us have been around here long enough to know that the shoe is sometimes on the other foot ... You may regret this a lot sooner than you think."
- Or, in the less ominous words of McConnell's spokesperson, "I'm looking forward to President Rubio stacking the courts."
- Vice President Biden, on the other hand, supported the rule change. What did the rule change mean for the Senate, he was asked while ordering lunch at his favorite Delaware-based sandwich shop? "It means they will learn to eat at Capriotti's."
- What is the nuclear option? It's a rule change—with a memorable moniker coined by Senator Trent Lott in 2003 (Mark Lebovich called it "akin to McDonald's touting the Quarter Pounder With Cheese as 'the heart attack option'" in 2005)—that would allow nomination proceedings to advance from debate to vote, know as a "cloture motion in Senate speak, with a simple majority of 51 votes. Previously, 60 votes were needed to advance.
- And why did it take so long for Reid to call a vote on the rule change if they've been exasperated by the slowly emptying executive office buildings for so long? Well, if a Republican wins the White House in 2016, or Republicans regain control of the Senate,they'll get to bypass the filibuster too. The nuclear option neutralizes the threat of one of the Senate's favorite secret weapons, at least on executive nominations, for good...
- ... except for Supreme Court nominations—Reid excluded them from the rule change—which is probably for the best. As Jonathan Chait says, "A world in which 50 senators can confirm a lifetime judicial appointment could one day have frightening ramifications."
- This whole fight might be just Republicans gaming out an optimistic future where they get back the majority, and take the reins with Harry Reid already having done "some of their dirty work for them."
- And, Paul Waldman says, Republicans would have done this if they were in charge anyway. "They've taken virtually every opportunity they could to upend whatever rules and norms stood in the way of them getting what they want. Let's say that it's 2017 or 2021, and they've won the presidency and the Senate. Can anyone believe that if on this day in 2013 the Democrats decided to keep the filibuster for judicial nominations, Republicans would then do the same out of a sense of fair play? This is the party that over the last five years has filibustered literally every bill of greater consequence thanrenaming a post office."
- But, they didn't have much of a choice, if they wanted to check anything off theirplatform to-do list. As Ezra Klein puts it, "Democrats are faced with a choice: keep the filibuster and get nothing done. Change the filibuster and get nothing done aside from staffing the federal government and filling a huge number of judicial vacancies with lifetime appointments."
- The U.S. Court of Appeals are likely to hear some big cases soon, including ones on Dodd-Frank and EPA regulations. We'll see what happens next.
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