I suppose it is possible that Greg Sargent is being used as a conduit to issue a credible threat, but the threat (and the reasoning behind the threat) seems credible to me. Harry Reid intends to “go nuclear” before Thanksgiving. According to Sargent’s reporting, Reid will change the rules of the Senate in such a way that the filibuster will be unavailable to the Republicans for all but Supreme Court nominations.
If this really comes to pass, it will be a major defeat for the Republicans in the short-term. To see why, look at how many vacancies there on the federal courts of appeal (the numbers on senior judges is a best-estimate).
1st Circuit: Active judges: 3 DEM, 2 GOP. Senior Judges: 1 DEM, 5 GOP. One vacancy, David Jeremiah Barron nominated on September 24, 2013.
2nd Circuit: Active judges: 8 DEM, 5 GOP. Senior Judges: 6 DEM, 3 GOP. No vacancies.
3rd Circuit: Active judges: 7 DEM, 5 GOP. Senior Judges: 3 DEM, 9 GOP. Two vacancies.
4th Circuit: Active judges: 9.5 DEM, 5.5* GOP. Senior Judges: 0 DEM, 1 GOP. No vacancies.
5th Circuit: Active judges: 5 DEM, 10 GOP. Senior Judges: 2 DEM, 6 GOP. Three vacancies.
6th Circuit: Active judges: 5 DEM, 10 GOP. Senior Judges: 5 DEM, 8 GOP. One vacancy.
7th Circuit: Active judges: 3 DEM, 7 GOP. Senior Judges: 1 DEM, 3 GOP. One vacancy.
8th Circuit: Active judges: 3 DEM, 7 GOP. Senior Judges: 1 DEM, 8 GOP. No vacancies.
9th Circuit: Active judges: 18 DEM, 9 GOP. Senior Judges: 9 DEM, 7 GOP. Two vacancies, John B. Owens and Michelle T. Friedland nominated on August 1st, 2013.
10th Circuit: Active judges: 5 DEM, 5 GOP. Senior Judges: 4 DEM, 6 GOP. Two vacancies, Carolyn B. McHugh nominated on May 16th, 2013 and Nancy Moritz nominated on August 1st, 2013
11th Circuit: Active judges: 5 DEM, 3 GOP. Senior Judges: 2 DEM, 6 GOP. Four vacancies. Jill A. Pryor nominated on February 16, 2012 and Robin S. Rosenbaum nominated on November 7, 2013.
DC Circuit: Active judges: 4 DEM, 4 GOP. Senior Judges: 1 DEM, 5 GOP. Three vacancies: Patricia Millett, Nina Pillard, and Robert L. Wilkins nominated on June 4th, 2013.
Federal Circuit: Active judges: 7 DEM, 5 GOP. Senior Judges: 2 DEM, 4 GOP. No vacancies.
*judge was nominated by Clinton and renominated by Bush.
There are 19 total vacancies, all of which would be filled within a year. You can figure which courts would be the most important on your own. Just keep in mind that Senior Judges do hear cases. Their presence on the court helps determine the ideological makeup of the court. That’s one reason why the Republicans have fought so hard against the three DC Circuit judges.
I said a while ago that the Democrats had no choice but to go nuclear, and it looks like I might be right.
And this just appeals court vacancies. There are many important district court and Executive branch vacancies to be filled as well.
Do it, Harry. No more bluffing. The time is now.
Why not just force a talking filibuster first? Tie up the Senate for a few weeks. Make David Vitter get his diaper back on.
THEN you can go nuclear.
It’s not like the Senate is doing any legislating that will pass the House.
I grow weary of explaining the filibuster.
There is no such thing as a talking filibuster.
A filibuster is when 41 senators agree not to let something happen.
More specifically, when there is a lack of unanimous consent among the 100 senators then the Majority Leader must ask for cloture, which requires 60 votes. A senator does not need to speak for more than a second in order to object to a motion. Objecting creates an automatic delay of one day plus thirty hours.
A senator can speak for as long as he or she wants but only if there has been no consent agreement to limit debate.
There is no prospect that the Senate will do away with the unanimous consent rule, so it’s really just a matter of changing what it takes to overcome an objection. For example, it is already the case that you cannot object to (filibuster) a motion to proceed to a budget reconciliation bill. Likewise, they can make it so you cannot object to move to the consideration of a certain class of nominees.
But you can’t force anyone to talk. In fact, the cloture rule provides for 30 hours of debate, thereby making a filibuster impossible because there is a limit to the debating time built right into the rule.
It seems as though the Senate Republicans have all abut forced the Democrats to go nuclear. I’m surprised, that’s not going to help them in the long run. Perhaps they thought the Democrats would never fight back no matter how far they pushed it, or perhaps they thought they could always get them to agree to a compromise at the last minute.
It does seem that the last few times, the Republicans really do get taken by surprise when the Democrats actually stand and fight. I think that we should stand and fight them more often.
That being said, from a Democrat perspective, we should get rid of the filibuster. As it stands, the Republicans hold the line against a Democratic Senate, the Democrats defer and the Republicans get their way. When the Republicans are in power Democrats mostly fold and the Republicans get their way again; they will pretty much change any rule that stands in their way, because elections have consequences don’t you know.
The comment that we should “be careful what we wish for” because they “have more Scalias and Thomases” in the wings is absurd on it’s face. Their Scalias and Thomases get confirmed already – as you can see, they sit on the court today. With the filibuster gone, maybe the Democrats will actually get a few Scalias and Thomases of their own for a change.
The Republicans plan on taking the Senate in 2014. Nate Silver thought they had a decent chance before his web site went dark.
If this goes through, I expect somehow or other we’ll have impeachment proceedings begin in the House. Yes, I know a Senate rules change has nothing to do with the president or the House or anything else, but the Reepubs will be out for blood, and dominating the news cycles with ginned up outrage over such an “unprecedented power grab” and symbolic votes to repeal the ACA just won’t cut it. They’ll find something.
Just to put a time frame on things, my informal prediction is if Reid goes nuclear, the House will indirectly retaliate with impeachment within 6 weeks. It will of course ostensibly be entirely unconnected with the Senate rules change, and an unfortunately unavoidable last resort in the defense of Freedom against Tyranny. Probably not Benghazi; they might try to drum up a perjury charge out of the ACA “lies.”
Benghazi!
It doesn’t have to be indirect. They could always try to impeach Harry Reid. It would probably be unconstitutional, not to mention deeply silly, but that would stop the Tea Party.
Oops. Duh. Wouldn’t stop the Tea Party.
Does Reid have the votes to get this through? Answer: “The aide says Reid believes he now has 51 Dem Senators behind a rules change, if it comes down to it.” That’s not much of a cushion. I suppose the VP could provide a tie-breaking vote. Nevertheless I expect that this threat is credible enough that it will lead to another gaggle of judges getting confirmed when the repubs cave, 1 minute before midnight. I doubt senate filibuster rules wil actually be changed though, based on history.
That’s a good point. The Senate Republicans would be losing their only toy if they lost the filibuster. The question is how many of them have enough sense to realize that.
Nuclear Option is a good crowbar to pry off the lid of what has become an infringement on what we call the 3 equal branches. The Executive branch has been denied its equality, and therefore its ability to meet its obligations, by the Legislative branch’s abuse of the filibuster.
Simply put, the filibuster abuse has run its course.
Rather just banning filibusterers why not simply make all courts equal numbers nominated by each side and filibuster proof.
If I understand the intention of the courts as separate arm of democracy then make it neutral. Make their decisions based on law rather than political bias.
Unlike lower courts he who has the most money can buy a better Attorney. When it comes to appellant courts applicants should be the best of the best legal minds. As such they should be all about the same skill and competence.
I’d prefer 20 year non-renewable terms. Or ten year “up or out”.
And why can’t the US Senate just abide by a majority vote to pass anything. Everywhere else in the world it seems to be that way, at least in the West. Nevertheless I will take into consideration that the US is definitely exceptional….in more ways than one. Any spooks reading this?
The Senate is supposed to be calm and thorough. The rule is there to ensure that debate has been thorough and all States (remember the Senate represents states) have had their say. Regional conflict existed from the start. The original two thirds rule ensured that both North and South would have their say. Senate speeches were supposed to persuade, not just be fodder for campaign donations. Senators were actually supposed to consider what was best for their State and the nation as a whole, not be a programmed response from K street.
Yes, but when did the Senate begin to demand a super majority? The rule/practice is there to cause mischief, not so ‘calm and thorough’. It’s a rotten, undemocratic system by today’s standards because 2 senators represent less than a million people in Wyoming and Montana and 2 represent many millions in California, New York, etc. Everyone knows this. And then the requirement for 61 votes. That’s all very professional and democratic. Like I said: US exceptionalism. It’s nuts.
The original intent was not to permanently block legislation but to to ensure complete discussion of the issues. It is a good rule if and only if Senators have minds open to persuasion.
No matter what, it is undemocratic. The president is chosen by simple majority of the electoral votes (also completely undemocratic instead of a majority of the votes across the country)why shouldn’t the Senate abide by a simple majority. It is too simple to even contemplate. The Senate needs encouragement to discuss and consider? Now we are really going overboard to defend ‘entitlement’.
I was just explaining how the rule came about. It is also “undemocratic” for the Majority Leader to be able to keep legislation from the floor. Likewise for Committee Chairman. There must be rules lest the Senate turn into a mob. When the rules are abused, it’s time to change the rules.
Correct me if I’m wrong, but the U.S. by intent and design has always been a representative democracy, not a pure democracy. You seem to be arguing the merits of the latter form of government, but that isn’t the American system.
As others have argued, the rules of behavior in the House and Senate are there to temper the power of the majority while maintaining the vitality of the minority in the process (they SHOULD be invested in the process functioning, i.e., they should want to influence it but not destroy it).
I don’t think we need to change the entire system of our representative democracy, but when the minority is actively BREAKING the system, they need to be restrained until they become the LOYAL opposition again.
So, if it’s not a pure democracy, what is it then, an impure one? Representative democracy = impure. What is a representative democracy anyway? You have democracy or you don’t, I’d say. The US system is medieval by continental European standards. The UK’s too.
When you go nuclear and effectively eliminate the filibuster forever (or at least until the next session of Congress, when the Senate can reinstate it in the rules), the best use beyond appointments is to pass legislation that is popular with a huge majority of the people and puts pressure on the House. That gets Democrats credit for “breaking the logjam in the Senate”.
Five years is much too long for any Congress to hold up appointments on a general basis. Democrats need to fill out the full complement so that there are no vacancies at all.
This has been typical:
That is something I have been afraid of as well.
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electronic medical records
Excellent post. Senior circuit judges very often hear as many cases as non-senior. They usually don’t participate in en banc decisions, where the entire “active” court hears an appeal. Such cases are very rare, however. So all those senior GOPers on, say, the DC circuit are very important. Hell, the GOP judges will still outnumber Dem appointees on the DC circuit even IF these filibustered 3 are ever seated.
The overwhelming “conservative” control over the 5th, 6th, 7th and 8th circuits explains the massive GOP assaults on civil rights across much of fly-over land–aka Traditional America.
If Reid has his 51, then Mitch’s Morans will certainly offer to cave in some fashion, or be granted some compromise, that gives Dems less than a total victory and leaves Mitchipoo free to totally obstruct another day. Dems simply will not bludgeon Mitch’s turds no matter how much abuse they receive from them. They just won’t play beanball.