Senate Democrats Enact Nuclear Option

Washington Post: Senate Democrats “Eliminated Filibusters For Most Presidential Nominations.” From the Washington Post:

The partisan battles that have paralyzed Washington in recent years took a historic turn on Thursday, when Senate Democrats eliminated filibusters for most presidential nominations, severely curtailing the political leverage of the Republican minority in the Senate and assuring an escalation of partisan warfare.

The rule change means federal judge nominees and executive-office appointments can be confirmed by a simple majority of senators, rather than the 60-vote super majority that has been required for more than two centuries. [The Washington Post, 11/21/13]

During Bush Administration, Conservatives Decried Filibusters Of Judicial Nominees And Cheered GOP Attempts At A Rule Change

Rush Limbaugh: “The Constitution Says Nothing About This. The Constitution Says Simple Majority, 51 Votes.” While discussing Democratic filibusters of Bush's lower court judicial nominees, Rush Limbaugh stated:

LIMBAUGH: If the Senate Republicans are not prepared to end the unprecedented use by Senate Democrats of the filibuster rule against the president's judicial nominees, the president is going to have a real tough time getting these re-nominated candidates -- and for that matter -- Supreme Court nominees confirmed. This filibuster, as you know, they're filibustering these nominations which requires essentially 60 votes for a judge to be confirmed. The Constitution says nothing about this. The Constitution says simple majority, 51 votes. But because they're invoking the filibuster, which, you know, the Senate can make up its own rules but not when they impose on the Constitution and not when they impose on the legislative branch. Separation of powers here. But if nobody stops them, they're going to keep getting away with it. It's up to the Senate Republicans to stop them.

[...]

If the Senate, which has the constitutional right to make its own rules, decides that it wants to require a super-majority vote to pass certain bills such as tax bills -- and they can do that. They can write those rules all day long -- such a rule would not infringe on presidential power. But to do so when it affects a presidential power, which takes us into a separation of powers issue, like the appointment of judges, that is unconstitutional, in my layman's view. [Premiere Radio Networks, The Rush Limbaugh Show, 12/24/04, via Media Matters]

Sean Hannity: “I Believe It's Unconstitutional To Filibuster.” During a 2005 edition of Fox News' Hannity & Colmes, Sean Hannity declared that there “are seven specific instances in the Constitution where they call for a supermajority,” thus he believed it was “unconstitutional to filibuster” judicial nominees:

HANNITY: Senator [John McCain], one last question before we let you go here.

There are seven specific instances in the Constitution where they call for a supermajority. I believe it's unconstitutional to filibuster. It is not about advice and consent now to ask for a supermajority on judicial nominations. I believe that is not constitutional.

There's been a lot of talk about what we describe as the “constitutional option,” which is that the Republicans would unite and vote, and there would be an up-or-down vote on all of the judicial nominations. Do you think that's the right thing to do? Will you support [then-Senate Majority Leader] Senator [Bill] Frist if he does it? [Fox News, Hannity and Colmes, 3/2/05, via Media Matters]

Wall Street Journal: Using Nuclear Option Is Better Than Letting “A Willful Minority Deny The President's Nominees A Vote On The Senate Floor.” The WSJ wrote an editorial approving the use of the nuclear option in May 2005:

Barring a surprise last-minute deal, this week Senate Majority Leader Bill Frist will ask for a ruling from the chair -- Vice President Dick Cheney presiding -- that ending debate on a judicial nominee requires a vote of a simple majority of 51 Senators, not a super-majority of 60. The nuclear option -- aka the “constitutional option” -- will have been detonated. Judicial filibusters, R.I.P.

This will not be the world's greatest deliberative body's greatest moment, and the only thing we know for sure about what will happen next is that the reputation of the Senate will suffer. It's a shame it has come to this. But at this point it would be worse if Republicans let a willful minority deny the President's nominees a vote on the Senate floor.

[...]

This is at its core a political fight, and elections ought to mean something. Republicans have gained Senate seats in two consecutive elections in which judicial nominations were among the most important issues, including against the Senate Minority Leader. The one Democrat from a red state who won last year, Ken Salazar of Colorado, did so by promising to oppose judicial filibusters; he now seems to have changed his mind after sipping the Beltway's partisan punch.

Perhaps the coming showdown will lead to more political bitterness, but we doubt Democrats will be able to follow through on their pledge to shut down the Senate; the public wants other things done. And who knows? If Democrats can't succeed any longer in legislating through the courts, maybe they'll even return to trying to win power the old-fashioned way, through elections. [Wall Street Journal, 5/16/05]

The WSJ also editorialized in January 2005 that what the nuclear option “should really be called is the 'majority-vote advice-and-consent' option. The aim is to restore the Founders' intent when they gave the Senate the responsibility of confirming or rejecting a President's judicial picks. The Constitution requires a simple majority vote and says nothing about a super-majority of 60 being needed to stop a filibuster.” The paper added: “Whether it's nuked or not, the judicial filibuster deserves to be defeated.” [Wall Street Journal, 1/24/05]

Rich Lowry: Judicial Filibusters Are “A Perversion” Of Traditional Checks And Balances And Should Be Eliminated “Through The So-Called Nuclear Option.” National Review editor and Fox News contributor Rich Lowry wrote in a 2005 column:

The judicial filibuster isn't a tradition, but an innovation; not a function of checks and balances, but a perversion of them; not an outgrowth of the Constitution, but at best irrelevant to it.

[...]

During the contentious fight over Clarence Thomas's nomination to the Supreme Court in 1991, Democrats who were harshly opposed to him still refused to filibuster his nomination, even though they would have had the votes to do so. Democratic Sen. Patrick Leahy called a filibuster against Thomas “nonsense” and a “crazy idea,” declaring himself “totally opposed to a filibuster.”

Democrats point to a filibuster of Lyndon Baines Johnson's 1968 attempt to elevate Abe Fortas from an associate justice to chief justice of the Supreme Court as a precedent. But it was different in kind from today's filibusters. It was bipartisan. Twenty-four Republicans and 19 Democrats voted against ending the filibuster. Fortas almost certainly didn't have the support to pass on an up-or-down vote in the Senate. Hurt by ethics charges, he soon withdrew his nomination, and ended up resigning from the court. The case was truly exceptional.

[...]

Senate Majority Leader Bill Frist should take away their ability to mount unprecedented judicial filibusters through the so-called nuclear option, then sleep the sleep of an utterly justified defender of Senate tradition. [National Review, 5/13/05, via Media Matters]

Karl Rove: “We Believe That Fairness Means That [Nominees] Deserve An Up-Or-Down Vote.” Then-deputy White House chief of staff -- now a Fox News contributor -- Karl Rove criticized the filibustering of judicial nominees, declaring that the Senate “has an obligation under the Constitution to offer its advice and consent by a vote”:

ROVE: In December, the president sent nominations up to the Hill. He took seven nominees who'd been previously stymied and not allowed a vote, some of them now four years that they've not been allowed a vote. We sent seven of those names up, we withdrew three. I saw no change in the tone of the other side. In fact, the flamethrowers and RPGs came out within moments of the statement. We believe that fairness means these people deserve an up-or-down vote. The Senate can debate, the Senate has a right to oppose, it has a right to support, but it has an obligation under the Constitution to offer its advice and consent by a vote. And it's only fair. [USA Today, 4/25/05]

Bill Kristol: “Congress' Role In Approving Executive-Branch Nominees Is To Have An Up Or Down Vote.” During an appearance on Fox News Sunday, Weekly Standard editor and then-Fox News contributor Bill Kristol said there is “no rationale” for a filibuster of executive-branch nominees:

KRISTOL: I think the momentum has gone actually in the Republicans' direction in the last couple of weeks. They've finally gotten the truth out, which is that this is historically unprecedented, the systematic filibuster of judicial nominees. They're finally getting the message out that filibuster's a legislative tool. If the legislature, if the Congress, pursuant to its ability to make rules for itself, wants to slow itself down, wants to require a supermajority for most legislation, that's fine. That's Congress legislating.

Congress' role in approving executive-branch nominees is to have an up or down vote. There's no rationale for a filibuster in that case. That's why it's historically unprecedented. That's the constitutional underpinning of our history, which is not to filibuster presidential nominees. The president has the duty to fill those jobs. Congress should advise and consent, or not advise -- not consent. And I think the Republicans are beginning to make this case. They're going to move on this in a couple of weeks. They're going to win on the Senate floor. [Fox News, Fox News Sunday, 5/1/05, via Nexis]

Kristol also wrote in a May 9, 2005, column for The Weekly Standard headlined “Break the Filibuster”: “More important, perhaps, the customary practice of not filibustering presidential nominees -- whether for the judiciary or the executive branch -- is not a mere matter of custom. It is rooted in the structure of the Constitution. While the filibuster of judges is not, in a judicially enforceable sense, unconstitutional, it is contrary to the logic of the constitutional separation of powers. ... When the Senate returns from its recess, the majority leader should move to enact a rule change that will break the Democratic filibuster on judicial nominees, confident in doing so that he is acting--the claims of Senator Durbin and the Financial Times to the contrary notwithstanding--in accord with historical precedent and constitutional principle.” [Weekly Standard, 5/9/05, via Media Matters]

Donald Lambro: Filibuster “Clearly Violates Our Nation's Governing Document.” Washington Times chief political correspondent Donald Lambro asserted in a 2005 column:

But applying the filibuster rule to prevent the Senate from carrying out its constitutionally granted authority to approve or disapprove each judicial nominee clearly violates our nation's governing document. [Washington Times, 4/28/05, via Media Matters]

Pat Robertson: “These Filibusters Have Been Unconstitutional. And The Senate, I Just Think The Majority Should Say, `Look, We Want An Up And Down Vote.'” Pat Robertson said in a 2005 interview with National Public Radio:

MADELEINE BRAND: So you are planning on exerting political pressure on the Senate to confirm President Bush's judicial nominees. How are you going to do that? How will you exert that political pressure?

ROBERTSON: Well, you know, vox populi, I think, is very important. I have a television network that has hooked into it about 200 broadcast stations and quite a few homes on the Internet. I think there were, last count, about 83 million homes on the cable network. And we're on other programs as well, so I can just speak out and ask people to call their senators. I do believe, from what I gather right now, that Senator Frist has the votes. He says he has the votes to cut off debate.

The Constitution gives the Senate the power of advice and consent. In other words, they can advise the president. They can consent. But there's nothing in the Constitution that says you have to have a 60-vote majority in the Senate in order to get confirmation of judges. And these filibusters that have been used recently against some very fine judges, these filibusters have been unconstitutional. And the Senate, I just think the majority should say, `Look, we want an up and down vote. We want these people to be voted on. If you're against them, well, vote against them. If you're for them, vote for them, and then let's have an honest process. Let's not have a filibuster.'

BRAND: And in the next election, in the next presidential election, are you going to hold Republicans, like Bill Frist, accountable if these judicial nominees do not get through?

ROBERTSON: He has the power to do that now, and the Republicans in the Senate have the power. And let's face it. I've been, well, a great advocate, a vociferous advocate for Republican majorities in the Congress, and worked very hard, I think, in '94 to bring that to pass. I think if they fail in this issue, I will certainly--let's put it this way--lose my enthusiasm for either giving them money or supporting them. But Frist is a good guy. He's going to make it happen, and he's got to do that. There's no choice in this matter. It's too important to the base of the Republican Party to let this thing go by. [National Public Radio, Day to Day, 2/23/05, via Nexis]

Daniel Henninger: “Start With A Throw-Down Of The Nuclear Option.” WSJ deputy editor Daniel Henninger wrote in May 2005:

If the Democratic argument takes root, then elections themselves have lost legitimacy in the American system. They no longer have relevance to a President's ability or right to govern. We won't let you govern because we do not admit the legitimacy of your victory. This is a radical position. But so is drawing to an inside straight. I'd raise them through 2008. Start with a throw-down of the nuclear option. [Wall Street Journal, 5/20/05, via Factiva]

Thomas Sowell Urged Republicans To “Force A Senate Rule Change To Stop Democrats From Filibustering Judicial Nominees.” From a syndicated column by Thomas Sowell:

It is important, in the first place, because the fundamental issue is whether the Senate will be allowed to vote at all, to fulfill its Constitutional duty to “advise and consent” on judicial nominees by voting them up or down.

Democrats are dug in to prevent a vote. The big question is whether the Republicans will wimp out. Senate Republicans have the votes but the question is whether they have the guts.

Undoubtedly there will be a political price to pay if the Republicans force a Senate rule change to stop Democrats from filibustering judicial nominees. But where is there anything worthwhile that does not have a price? [Creators Syndicate, 4/26/05]

Senate Republicans Are Engaged In Historically Unprecedented Levels Of Obstruction

People For The American Way: Republicans' “Unprecedented” Obstruction Has “Only Gotten Worse” In Recent Months. PFAW highlights the intense obstructionism engaged in by Senate Republicans during the Obama administration, noting that many nominees “have faced filibusters not because Senate Republicans objected to their personal qualifications, but because they do not wish to allow the agencies and departments to which they have been nominated to do their work”:

Earlier this year, People For the American Way released an analysis showing the unprecedented level of obstruction faced by President Obama's nominees to the executive branch. At that time, 16 of the President's nominees to the executive branch of government had faced filibusters from Republican senators and were the subject of cloture votes after Republicans refused to allow an up-or-down vote on their nominations. That number was on pace to reach 28 nominees by the end of President Obama's second term.

Since then, things have only gotten worse.

In the last four months, eight additional executive branch nominees have faced filibusters from Republicans intent on blocking their nominations. These include Kent Yoshiho Hirozawa (National Labor Relations Board member), Nancy Jean Schiffer (National Labor Relations Board member), Mark Gaston Pearce (National Labor Relations Board Chairman), Byron Todd Jones (Director of the Bureau of Alcohol, Tobacco, Firearms and Explosives), Richard F. Griffin (National Labor Relations Board General Counsel), Alan F. Estevez (Assistant Secretary of Defense Logistics and Materiel Readiness), Katherine Archuleta (Director of the Office of Personnel Management), and Congressman Melvin L. Watt (Director of the Federal Housing Finance Agency). Notably, the filibuster of Congressman Watt represented the first filibuster of a sitting member of Congress for an executive branch appointment since before the Civil War.

[...]

Not only do these filibusters hinder the work of a wide range of agencies and departments, they are also part of a larger Republican agenda to nullify existing laws through obstruction. Many of President Obama's executive branch nominees have faced filibusters not because Senate Republicans objected to their personal qualifications, but because they do not wish to allow the agencies and departments to which they have been nominated to do their work. [People For The American Way, 11/18/13]