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U.S. Senate changes rules to stop minority from blocking nominations

The U.S. Senate yesterday enacted a major change to its rules, paving the way to allow a simple majority to confirm nominees for executive branch jobs and most judicial posts.

The Senate voted, 52-48, on a procedural issue that effectively ends the requirement that at least 60 votes are needed to advance nominations, except for those to the U.S. Supreme Court.

Senate Majority Leader Harry Reid said yesterday that since the nation was founded, half of the 168 nominees delayed in the Senate using the procedure were selections of President Obama.

“Is there anything fair about that?” Reid said before lawmakers began debating the changes. “The American people believe the Senate is broken, and I believe the American people are right.”

Reid invoked what has been described as the nuclear option. The revision is limited to executive branch and lower-court nominations and wouldn’t apply to legislation, Reid said.

The Senate is “burning wasted hours and wasted days between filibusters,” Reid said. “Today, Democrats and independents are saying ‘enough is enough.’ ”

Sen. John McCain, an Arizona Republican, said yesterday he tried and failed yesterday to work out an agreement with Reid to avoid changing the rules.

Democratic support for procedural changes gained momentum this week after a third consecutive Obama nominee for the U.S. Court of Appeals for the District of Columbia Circuit fell short of the 60 votes needed to advance. Democrats control 55 of the chamber’s 100 seats.

Senate Minority Leader Mitch McConnell said on the floor yesterday that Democrats are “cooking up a fake fight over judges” to distract from flaws in the rollout of Obama’s health care law, known as Obamacare, and “it won’t work.”

“Rather than distract from Obamacare, it only reinforces the narrative of a party that is willing to do or say just about anything to get its way,” said McConnell, a Kentucky Republican.

Democrats are incensed with Republican moves to block Obama nominees, including Rep. Mel Watt, a North Carolina Democrat tapped to head the federal agency that oversees government-chartered mortgage finance companies Fannie Mae and Freddie Mac.

The rejection of Watt’s nomination last month – the first time a sitting member of Congress had been denied confirmation in more than 150 years – has led to pressure for Reid to push for altering the rules.

McCain, who brokered an 11th-hour deal in July to avoid a similar showdown over nominees, told reporters his talks with Reid have been suspended after the discussions failed to yield a compromise.

“I’ve been working night and day for the last several days and so far had no success,” McCain said of his meetings with Reid. “I think he’s made his decision, and – at least in the short-term – I don’t see it changing.”

McCain said the change in rules would “strain relations enormously” on other legislation and nominees.

“They have used the majority to change the rules and therefore there are no rules,” McCain said. “I think it’s a sad day for the Senate.”

Sen. Thad Cochran, a Mississippi Republican, said the move “diminishes the power of the Senate to join with the executive in making certain decisions that are unique to our government.”

Sen. Jeff Merkley, an Oregon Democrat, on Wednesday made the case on the Senate floor for employing the “nuclear option” to change the rules through a simple majority vote to limit opponents’ power to block nominees.

“It is time to end the block-and-destroy strategy being employed by the minority,” he said.

Sen. Lamar Alexander, a Tennessee Republican, pressed lawmakers to oppose any rules change, which he called a “raw exercise of political power,” Bloomberg BNA reported.

A revision would transform the Senate “into an institution where the home team can cheat to win the game,” Alexander said on the Senate floor.

John Cornyn of Texas, the Senate’s No. 2 Republican, said “back-channel discussions” were held yesterday aimed at averting a showdown over the rules. He said he isn’t involved in the talks and didn’t offer details.

It takes 60 votes to end the minority-party delaying tactic known as a filibuster, and a change in the rules for ending filibusters wouldn’t be a first. In 1975, senators reduced the number of votes needed to end the obstruction tactic from 67 to the current 60.

A three-month truce between the parties on nominations unraveled amid opposition by Republicans to Obama’s picks for the D.C. Circuit – often regarded as the nation’s second-highest after the Supreme Court.

On Oct. 31, Republicans blocked confirmation of Washington lawyer Patricia Millett for a vacancy on the court. On Nov. 12, they blocked Georgetown University law professor Nina Pillard’s nomination to another vacancy on the same court. And Nov. 18, the nomination of U.S. District Judge Robert L. Wilkins fell short of the required 60-vote margin.

Reid criticized Republicans for moving Oct. 31 to block Watt’s nomination, saying they did so because they oppose the law Congress enacted to regulate financial institutions following the 2008 financial crisis.

Republicans have accused Obama of trying to fill the court – which often rules on challenges to government regulations – with nominees sympathetic to his agenda. Democrats say that Republicans are trying to deny Obama the confirmation votes they routinely gave to President George W. Bush.

During almost five years in office, Obama has placed only a single judge, Sri Srinivasan, on the D.C. Circuit. Srinivasan was confirmed in May after Obama’s first nominee, Caitlin Halligan, was blocked by Senate Republicans. They objected to Halligan’s work as New York state’s solicitor general on a lawsuit against handgun manufacturers.

Reid said Nov. 19 that he wouldn’t accept anything short of having all of the latest D.C. Circuit nominees approved.

“I insist on getting all three,” he said. “Any president, not just President Obama, Democrat or Republican, needs to be able to have the team that he wants in place.”

Legacy Comments37

No matter how Republicans try to spin it, from claims of "court-packing" to "the Democrats did it too", the numbers here tell the story--of deliberate obstruction that is unprecedented and avowedly ideological. "The median number of days from nomination to confirmation for circuit court nominees confirmed during a President’s first term ranged from 28 days (Reagan) to 225.5 days (Obama). For district court nominees, the median time elapsed ranged from a low, again, of 28 days (Reagan) to 215 days (Obama). President Obama is the only one of the five most recent Presidents for whom, during his first term, both the average and median waiting time from nomination to confirmation for circuit and district court nominees was greater than half a calendar year (i.e., more than 182 days). http://www.fas.org/sgp/crs/misc/R43058.pdf Federal Judicial Nominee Confirmation Rates --Clinton 79% Bush 91% Obama 76% http://judicialnominations.org/statistics
 "In the last four months, eleven additional executive branch nominees have faced filibusters from Republicans intent on blocking their nominations. These include Fred P. Hochberg (Export-Import Bank President), Regina McCarthy (Environmental Protection Agency Administrator), Thomas Perez (Secretary of Labor), 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.

Importantly, the rate of obstruction has increased considerably, and Republicans are now on pace to filibuster a full 45 nominees before the end of the Obama administration in January 2017. 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."

100% COURT STACKING.... I challenge anybody to read the following two articles and come away with any other opinion. 1) http://www.bloomberg.com/news/2013-11-22/democrats-give-up-2014-with-the-filibuster.html ... 2) http://www.powerlineblog.com/archives/2013/07/are-these-judges-really-necessary-except-to-promote-obamas-power-play.php

You can call it whatever you want-it's a presidential prerogative to nominate qualified individuals to vacancies on the federal bench when they develop. All 3 are highly qualified and worthy of consideration--which consideration Republicans would deny via filibuster. There are 8 active judges on the 2nd district, evenly split between Democratic and Republican appointees, to go with the 3 vacancies. There are also six "senior" judges who usually serve part-time — five of whom were appointed by Republican presidents. What some describe as "court packing" is more accurately described as restoring balance to courts that have had more than their share of out of the mainstream appointees from Republican presidents--Janice Rogers Brown is one of several far from the mainstream appointees who now sit on the federal bench. Over 40% of Obama's picks have been women and minorities--that's how he's re-making the federal courts. Conservative scholar Viet Dinh said this about Millard, probably the most liberal of the 3 nominees: "I know well Professor Pillard's intellect, integrity, and temperament…I know her to be a straight shooter when it comes to the law and legal interpretation." Dinh served as the assistant attorney general for legal policy under President George W. Bush. "I am confident that she would approach the judicial task of applying law to facts in a fair and meticulous manner ." Applying the law to facts in a fair and meticulous manner should be all that matters.

There should be no discussion about anyone interjecting their own personal beliefs into the courts. Justice is supposed to be blind, not "activist". Conservatives who are judges are also supposed to judge without interjecting their views into each verdict or judgment. I do think that conservatives will interpret the Constitution and liberals read things into the Constitution which are not there. I would come down on the side of Conservatives to be more fair. We DO NOT need and are not supposed to have anyone legislating from the bench or adding their own personal politics to any decision. Period.

reply to bruce below....right after the gang of 14 came to an agreement..the dems won the senate...so they didnt have to filibuster ...otherwise...they would have...as they did until 2006 ..which is why a gangof 14 agreement was needed in the first place...I'm sure you just left that part out...

"Democrats do not have entirely clean hands on the subject of filibustering nominees to the District of Columbia court. In 2003, when Democrats were a minority in the Senate, Senator Charles E. Schumer of New York persuaded initially reluctant members of his party to take what was considered an extreme step at the time: blocking a confirmation vote on Miguel Estrada, a lawyer nominated by President George W. Bush to fill a vacant seat on the court. Altogether that year, Democrats blocked six judicial nominees by using the filibuster" Source: NYTimes

The 3 nominees rejected by Senate Republicans abusing the filibuster, are all highly qualified. None of the three is radical. One formerly worked in the Solicitor General's Office under Clinton and Bush, and more recently has represented the Chamber of Commerce. Over the last decade, the federal judiciary has taken on a decidedly Republican tinge--they control 10 of the 13 federal circuits, and Republican appointees make up over 60% of the federal judiciary. 15 of the last 19 picks to the federal bench have been made by Republican presidents. With the election of Obama, Republican senators, unlike their Democratic colleagues during the Bush administration, broke the promise implicit in wielding the power of the filibuster--to use it selectively, based on "extraordinary circumstances". Instead, they've used the filibuster to to continue to remake the judiciary, most especially the D.C. Circuit, into a haven for ideologues.

“According to congressional data, former President George W. Bush actually had a lower percentage of circuit court nominees approved during his time in office than Obama. And when it comes to the amount of time it takes for circuit court nominees to get approved, Bush and Obama are actually in surprisingly close company, with Bush faring slightly worse” Bush average 277 days, Obama average 240 days. Source: Yahoo! News

Percentages confirmed don't tell the whole story. The Senate Republican strategy to prevent Obama from appointing judges goes farther than the filibuster. That's really the last step. Before that, senators can simply refuse to recommend potential judges for home state vacancies. In Kansas, there has been a vacant district court slot for over 1200 days. Neither Republican senator from that state has nominated anyone for that slot. Arizona and Texas have seen similar tactics from their senators. Next, senators can "blue-slip" a nominee for any reason, or no reason at all. There are currently 10 nominees effectively in limbo and on hold in this way. Then, senators don't always show up for committee work--if there's no quorum--there can't be a vote. Finally, senators can delay a confirmation vote, after a nominee has received committee approval. The average wait time for confirmation votes after committee approval is 116 days. That's for judgeships. Then there's the whole other matter of executive office positions not filled thanks to Republican obstruction--a record number--half of the total number counted since 1912. http://www.heraldnet.com/article/20131123/NEWS02/711239939/Obama-nominees-still-face-difficulties

no source as usual - because the truth can be found elsewhere

UNCONSTITUTIONAL - UNCONSTITUTIONAL - UNCONSTITUTIONAL - those are the verdicts the D.C. District court has returned regarding the Obama Hijinks. the DC Court split evenly with judges from both sides have repeatedly slapped down the NObama Admin lawlessness. Now NObama wants to stack the court with liberals to pass his radical agenda. Worse off the Court does not even need new judges.... http://www.powerlineblog.com/archives/2013/07/are-these-judges-really-necessary-except-to-promote-obamas-power-play.php

Both sides in this argument are hypocrits as both sides have used the fillibuster not to oppose a nominee on grounds of incompetency but rather for political purpose. The big differnce from when this change of the senate rules came up in the past was that both sides were willing to compromise. This time the republicans have been unwilling to compromise leaving no alternative but to invoke a change in the rules. And you can bet then if the republicans ever get back into power they will not change the rule back but rather embrace it. When over half of all blocked nominees in the history of this country have occured under one presidents term the only thing that can be believed is that the minority party in the senate is nothing more than obstructionist.

1 day old revisionist history spin from the left....does not take them long

It's not revisionist history Sail, it's the truth. In 2005, it was the GOP who wanted to do away with the fillibuster and the Dems that wanted to keep it. Now it's the other way around. BOTH parties are corrupt and hypocritical. We should boycott both parties. It's pitchforks and torches time, folks.

False Statement - "republicans have been unwilling to compromise' 100% pure leftist rhetoric blather ...however .....I agree - the republic is teetering on the edge and only a return to the constitution will stop the progressive destructive rampage

There are three nominees who have socialist to communist views who are being denied confirmation. Bottom line is the comments that people like Reid and Obama made and how they obviously have no moral character and virtue. Yes, things that you would love to dismiss in the face of political expedience. The other party did not support and will not support this president so long as he goes around bullying and trying to rule by fiat.

" socialist to communist views" you mean liberal and progressive ?

No, I am saying "socialist to communist" views and in reality anyone appointed to the bench is supposed to strictly interpret the Constitution and NOT bring in their own views. There is no impartiality on either side of the Supreme Court and that is not the way its supposed to be.

This post exemplifies the kind of fact-free name calling that certain posters on here say they abhor. Yet in their next breath, there they go. Some posters are shameless. "Socialist to communist views" views? Prove it. Put up or shut up.

Pillard has many social views to the Left of even Obama. Her associations are ultra progressive and therefore "socialist". Millett has extreme progressive ties and therefore "socialist". Wilkins may be OK, he worked for two previous administrations. There is no doubt that Obama wants to court pack the DC circuit. Now, Bruce I would suggest that YOU "shut up". Your personna and arrogance oozes from your post.

Your posts use mindless name-calling and smear tactics in the same manner as Joe McCarthy did in the 1950's. You provide no facts to back up your claims. Pillard is a magna cum laude graduate of Harvard Law School nominated to sit on the D.C. Circuit Court of Appeals, where there are 3 vacancies. Senate Republicans oppose Nina Pillard's nomination because she is a feminist, and pro-choice, and supports access to contraception and comprehensive sex education. Shocking! This makes her a "communist/socialist"? In the warped process that passes for thinking in the conservative mind, evidently. Her "radical" work before the Supreme Court included arguing the winning side in U.S. vs. Virginia, which opened up VMI to women (it passed 7-1 in the Rehnquist court) and defending the FMLA against a state challenge (a 6-3 win written by Rehnquist). Conservative legal scholar Viet Dinh says she belongs on the court:  "I know well Professor Pillard's intellect, integrity, and temperament…I know her to be a straight shooter when it comes to the law and legal interpretation." Dinh served as the assistant attorney general for legal policy under President George W. Bush. "I am confident that she would approach the judicial task of applying law to facts in a fair and meticulous manner ."

You could be a cum laude graduate from Harvard, it does not mean that you won't interject your own politics into the court system. What if a judge nominee represented was an activist which found that WASP men were discriminated about and fought for their rights, would you support that nominee, Nope. Intellect is nothing when you interject emotion and feelings into decisions.

http://cpusa.org/about-us/ is a web site where the almost plagiarized comments can be found

FACTS for the liberals : http://www.powerlineblog.com/archives/2013/07/are-these-judges-really-necessary-except-to-promote-obamas-power-play.php

Hypocrites, liars and dirty politicians all, This from when the Republicans only "threatened" to do the same thing in 2005. “Mr. President, I rise today to urge my colleagues to think about the implications of what has been called the nuclear option and what effect that might have on this Chamber and on this country. I urge all of us to think not just about winning every debate but about protecting free and democratic debate.”...Barack Obama 2005. “And I just had to hope that maybe between now and the time we have this vote there would be enough Senators who will say: Mr. President, no. We are sorry, we cannot go there. We are going to remember our Founders. We are going to remember what made this country great. We are going to maintain the integrity of the U.S. Senate.”...Hillary Clinton 2005. "“The filibuster is not a scheme and it certainly isn't new. The filibuster is far from a procedural gimmick. It's been employed on legislative matters, it's been employed on procedural matters relating to the president's nominations. Senators have used the filibuster to stand up to popular presidents, to block legislation, and, yes, even, as I've stated, to stall executive nominees. The roots of the filibuster are found in the Constitution and in our own rules"....Harry Reid, May 18, 2005."

It's about time. The imploding of the GOP continues.

Democrats want to stack the courts with progressives and there are only three who can not get through the process. Once again, Democrats have put ideology and party above the people of this nation. This is little more than legislative tyranny and Harry Reid, along with our own Jeanne Shaheen are little more than puppets of an extreme administration with seditious aims at minimizing the Constitution and controlling our freedoms and liberties.

Do you really think that republicans have not tried ans succeeded ion stacking the courts when they were in power. Newsflash they have and they will again next chance thay get. They have already over the last few years that they too place party ideology above the people.

Sorry, two wrongs don't make a right. It really reveals the sleazy and nasty character of Reid. He is truly a tyrannical individual.

Then you think if republicans gain control of the senate they will change the rule back because they are such fine upstanding individual who are concerned about the process.

I would want them to but in retrospect, you can't deal with sleaze balls by taking the high road. They will always be slithering in the muck below, waiting for their chance to bully and cheat the system. Face it they want to stack the courts and they are playing this now to get the discussion off of Obamacare.

"For federal appeals court nominees, President George W. Bush saw 35 of his 52 nominees confirmed, and, so far, 30 of Mr. Obama’s 42 nominees have been confirmed" Source: WSJ

The radicals are the unpatriotic democrats. The Tea Party is an movement that is not trying to impose some untried leftist utopia like what the democrats try and sell you daily. Obama and the democrats actions caused the silent majority to rise to fight to restore the lost heritage of America that had been eroded, undermined, or just plain sold out by the democrats. This Nuclear Option used by the democrats has ended 200 +Years of Senate rules that were written by Jefferson. How does one ignore that the democrats have not produced a budget in 4 years How does one ignore that the democrats have taken the debt from 10 trillion to $$$$$ 17 TRILLION in just 4 years. How do you not see the damage democrats are thrusting on you . This latest NUCLEAR OPTION means all out WAR to SAVE AMERICA.

2+ CENTURIES of Senate rules that Jefferson authored down the drain. We elect LEADERS to be the custodians of the Constitution and the America way of life .... not ...Not.... NOT .... to change it to their daily whims. There is not a single Statesman in the entire democrat delegation. Untrustworthy democrats just voted the NUCLEAR OPTION and have forever changed the Republic. This is now an all out WAR to SAVE AMERICA. The silent majority will awaken and the liberal democrats will be struck down with the force of lightning.

Right...making things up again, are we? "In testimony before the U.S. Senate Committee on Rules and Administration, Sarah Binder counters a number of conventionally held notions about the origins and history of the Senate filibuster. Binder notes that the filibuster was not part of the original design of the Senate ….'We have many received wisdoms about the filibuster. However, most of them are not true. The most persistent myth is that the filibuster was part of the founding fathers’ constitutional vision for the Senate... It is said that the upper chamber was designed to be a slow-moving, deliberative body that cherished minority rights. In this version of history, the filibuster was a critical part of the framers’ Senate. However, when we dig into the history of Congress, it seems that the filibuster was created by mistake... In 1805, Vice President Aaron Burr was presiding over the Senate (freshly indicted for the murder of Alexander Hamilton), and he offered this advice. He said something like this. You are a great deliberative body. But a truly great Senate would have a cleaner rule book. Yours is a mess. You have lots of rules that do the same thing. And he singles out the previous question motion. Now, today, we know that a simple majority in the House can use the rule to cut off debate. But in 1805, neither chamber used the rule that way. Majorities were still experimenting with it. And so when Aaron Burr said, get rid of the previous question motion, the Senate didn’t think twice. When they met in 1806, they dropped the motion from the Senate rule book. Why? Not because senators in 1806 sought to protect minority rights and extended debate. They got rid of the rule by mistake: Because Aaron Burr told them to.Once the rule was gone, senators still did not filibuster. Deletion of the rule made possible the filibuster because the Senate no longer had a rule that could have empowered a simple majority to cut off debate.The filibuster is more accurately viewed as the unanticipated consequence of an early change to Senate rules.'" http://www.brookings.edu/research/testimony/2010/04/22-filibuster-binder

But a "simple majority" rules this country with an iron fist right now, thrashing anyone who disagrees. Hmmm....

This guy..Harry Reid....I dont believe one word, not a one, that comes out of his mouth. A few short years ago, he said just the opposite of what he is saying now, along with Obama and the rest of the dems.

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