So much has now been written about the filibuster that one might think there is nothing more to say. Wrong! I do have some observations, about the Senate leading up to this change, and about the Senate going forward, that I hope will plow new ground—or at least use different furrows.
First off, I view the actions taken last week with some sorrow. I am not exultant that the change took place the way it did. I have long been an advocate not of removal of the filibuster, but of filibuster reform; my main idea has been to shift the threshold from 60 votes needed to stop debate to 40 votes needed to continue it—putting the onus where it belongs, on the minority, with an even more relaxed threshold for executive nominations.
But I would much rather have seen this impasse resolved the way it has been in the past, with a bipartisan agreement to break the logjam and approve most of the president's nominees, along with a return to the 2005 standard that filibusters of nominations should be reserved for "extraordinary circumstances." When it became clear that there was no chance of such a deal, I supported Harry Reid's actions.
It is true that both parties have used, and abused, filibusters of judicial nominees in the past. A sharp increase in the use of filibusters against appeals court judges—including what I decried then as the foolish filibuster against the highly qualified Miguel Estrada—led then-Majority Leader Bill Frist to propose what his predecessor Trent Lott called the nuclear option in 2005. I strongly opposed it then, and breathed a sigh of relief when the "Gang of 14"—seven senators from each side of the aisle—reached a compromise that ended up confirming such extreme judges as Janice Rogers Brown and Priscilla Owen and returning the Senate to the standard of limiting filibusters to extraordinary circumstances.
What changed? Mainly, Senate Republicans. In 2005, Lamar Alexander, joining most of his colleagues, said, "I would never filibuster any president's judicial nominee, period. I might vote against them, but I will always see they came to a vote." But since Obama moved into the White House, Senate Republicans upped the ante dramatically, turning the filibuster into a routine weapon of mass obstruction.
On judges, the combination of filibustering even nominees who ultimately were confirmed unanimously or near unanimously, just to soak more of the Senate's most precious commodity, time, and of filibustering not based on qualifications of the nominees but simply to keep slots from being filled, is simply over any line. And it is far from the moral commitments made in the 2005-06 period, and from the understanding reached this past January that headed off more sweeping rules changes at the beginning of the 113th Congress. It was that violation that moved senators long skeptical of changing the rules, like Dianne Feinstein, Barbara Boxer, and Max Baucus, into supporting Reid's move. And the unconscionable blockage of the extraordinarily talented and experienced Mel Watt from the Federal Housing Finance Agency was a clear, in-your-face defiance of Senate comity.
There is another point that has rarely been made. It is Senate practice, going back a long way, to give senators the ability to recommend or block nominations for federal district court vacancies in their states—using what are called "blue slips." Since Barack Obama became president, several Republican senators have refused to recommend any nominees for district-court vacancies in their states, another breach in fundamental practice.
The Senate rules matter, of course. But the rules are deeply interwoven with Senate norms. The need to achieve unanimous consent to move most anything, and the underlying need to get 60 votes for anything controversial, in most circumstances, have pushed the Senate toward collegiality, toward the need to broaden coalitions and move to the center. But if the norms are blown up, which is what Senate Republicans under Mitch McConnell have done over the past five years—using the rules not to build bridges but to construct dams—it becomes almost inevitable that the rules will change to adapt. Of course, it is not a one-way street; Reid has too often filled the amendment tree, denying the minority (and sometimes rank-and-file members of his own party) opportunities to amend bills. But that has nothing to do with confirmations, and the weight of blame tilts heavily to the GOP side.
Secondly, unlike 2005, there were not seven Republicans, or five, willing to come together to reach a compromise. There were probably two—Susan Collins, who commendably did not support the filibusters of the three nominees to the D.C. Circuit, and John McCain, who cares about the traditions of the Senate. The fact is that if there had been seven, they would have found seven willing partners on the other side. There were not, leaving Reid no real choice but to move.
Perhaps the other Republicans in the Senate, including McConnell, thought Reid was bluffing and did not have the 50 votes he needed. But it was very clear to anyone watching closely that he did—thus, my explanation that McConnell and his colleagues provoked this action. Why? One reason is that McConnell needs a more compelling target to shore up his shaky reelection position. Obamacare is not enough in a state, Kentucky, where it is working better than anywhere else. Pointing to the Democrats as an evil force trampling on the Constitution enables him to push attention in a different direction, given that a tiny sliver of Kentuckians approve of his role brokering the reopening of the government—he is the one standing against the un-American Democrats. And if McConnell prevails, and if Republicans control the House, Senate, and White House in 2017, he can blame Reid and the Democrats when he removes all remaining filibuster roadblocks.