Major, Huge, Breaking, Groundbreaking News on the U.S. Senate Filibuster’s Rule

Harry Reid just gave a speech on the floor of the U.S. Senate that will rightfully belong in the history books.  He’s taking on the filibuster — at least as applied to executive nominations short of the U.S. Supreme Court.

This is a massively gutsy move for Senate Democrats, especially given the fair likelihood that they will lose the Senate majority next year due to the nature of the seats that happen to be up.  (They’d likely gain it back in 2016 — but still — two years is a long time.)

This is the sort of act that will be misinterpreted for decades, possibly centuries, as a partisan chokehold.  Reid makes the case that Republican intransigence is to blame — and he has the facts and figures to back up his claim.  So, if you’re going to have an opinion, it might as well be an informed one.  Here’s the text of his speech (I believe “as-prepared” rather than a transcript); I’ve taken the liberty of highlighting in bold the facts that you should know as you decide whether this is a putsch — as skally and others will no doubt say — or a response to an unprecedented record of intransigent obstruction.  We’ll be debating this for years — might as well start now!

In fact, here’s a nice graphic to start things off!

Filibuster reform graphic

That’s comparing five years versus 220 years, if you’re counting. Yeah, maybe this situation IS a little unusual. (Source — someone on the internet.)


The American people believe Congress is broken. The American people believe the Senate is broken. And I believe the American people are right.

During this Congress – the 113th Congress – the United States Senate has wasted an unprecedented amount of time on procedural hurdles and partisan obstruction. As a result, the work of this country goes undone. Congress should be passing legislation that strengthens our economy and protects American families. Instead we’re burning wasted hours and wasted days between filibusters.

Even one of the Senate’s most basic duties – confirmation of presidential nominees – has become completely unworkable. For the first time in history, Republicans have routinely used the filibuster to prevent President Obama from appointing his executive team or confirming judges.

It is a troubling trend that Republicans are willing to block executive branch nominees even when they have no objection to the qualifications of the nominee. Instead, they block qualified executive branch nominees to circumvent the legislative process. They block qualified executive branch nominees to force wholesale changes to laws. They block qualified executive branch nominees to restructure entire executive branch departments. And they block qualified judicial nominees because they don’t want President Obama to appoint any judges to certain courts.

The need for change is obvious. In the history of the Republic, there have been 168 filibusters of executive and judicial nominations. Half of them have occurred during the Obama Administration – during the last four and a half years. These nominees deserve at least an up-or-down vote. But Republican filibusters deny them a fair vote and deny the President his team.

This gridlock has consequences. Terrible consequences. It is not only bad for President Obama and bad for the United States Senate; it’s bad for our country. It is bad for our national security and for our economic security.

That’s why it’s time to get the Senate working again – not for the good of the current Democratic majority or some future Republican majority, but for the good of the country. It’s time to change the Senate, before this institution becomes obsolete.

At the beginning of this Congress, the Republican Leader pledged that, quote, “this Congress should be more bipartisan than the last Congress.” We’re told in scripture that, “When a man makes a vow… he must not break his word.” Numbers 30-2. In January, Republicans promised to work with the majority to process nominations… in a timely manner by unanimous consent, except in extraordinary circumstances.

Exactly three weeks later, Republicans mounted a first-in-history filibuster of a highly qualified nominee for Secretary of Defense. Despite being a former Republican Senator and a decorated war hero, Defense Secretary Chuck Hagel’s nomination was pending in the Senate for a record 34 days, more than three times the previous average. Remember, our country was at war. Republicans have blocked executive branch nominees like Secretary Hagel not because they object to the qualifications of the nominee, but simply because they seek to undermine the very government in which they were elected to serve.

Take the nomination of Richard Cordray to lead the Consumer Financial Protection Bureau. There was no doubt about Mr. Cordray’s ability to do the job. But the Consumer Financial Protection Bureau – the brainchild of Senator Elizabeth Warren – went for more than two years without a leader, because Republicans refused to accept the law of the land – because they wanted to roll back a law that protects consumers from the greed of big Wall Street banks.  I say to my Republican colleagues, you don’t have to like the laws of the land. But you do have to respect those laws, acknowledge them and abide them.

Similar obstruction continued unabated for seven more months, until Democrats threatened to change Senate rules to allow up-or-down votes on executive nominees. In July, after obstructing dozens of executive nominees for months, and some for years, Republicans once again promised that they would end their unprecedented obstruction.

One look at the Senate’s Executive Calendar shows nothing has changed since July.  Republicans have continued their record obstruction as if no agreement had ever been reached. Republicans have continued their record obstruction as if no vow had ever been made. There are currently 75 executive branch nominees ready to be confirmed by the Senate that have been waiting an average of 140 days for confirmation. One executive nominee to the agency that safeguards the water our children and grandchildren drink and the air they breathe has waited more than 800 days for confirmation.

We agreed in July that the Senate should be confirming nominees to ensure the proper functioning of government. But consistent and unprecedented obstruction by the Republican Caucus has turned “advise and consent” into “deny and obstruct.”

In addition to filibustering a nominee for Secretary of Defense for the first time in history, Senate Republicans also blocked a sitting member of Congress from an Administration position for the first time since 1843. As a senior member of the House Financial Services Committee, Congressman Mel Watt’s understanding of the mistakes that led to the housing crisis made him uniquely qualified to serve as administrator of the Federal Housing Finance Agency. Senate Republicans simply don’t like the consumer protections Congressman Watt was nominated to develop and implement.  So they denied a fellow member of Congress and a graduate of Yale Law School even the courtesy of an up-or-down vote.

In the last three weeks alone, Republicans have blocked up-or-down votes on three highly qualified nominees to the D.C. Circuit Court of Appeals, considered by many to be the second highest court in the land. Republicans have blocked four of President Obama’s five nominees to the D.C. Circuit, whereas Democrats approved four of President Bush’s six nominees to this important court. Today, 25 percent of the D.C. Circuit Court is vacant. There isn’t a single legitimate objection to the qualifications of any of these nominees. Yet Republicans refused to give them an up-or-down vote – a simple yes-or-no vote. Republicans simply don’t want President Obama to make any appointments at all to this vital court.

Further, only 23 district court nominees have been filibustered in the entire history of this country.  Twenty of them were nominated by President Obama. With one out of every 10 federal judgeships vacant, millions of Americans who rely on courts that are overworked and understaffed are being denied the justice they rightly deserve. More than half the nation’s population lives in a part of the country that’s been declared a “judicial emergency.”

The American people are fed up with this kind of obstruction and gridlock. The American people – Democrats, Republicans and Independents – are fed up with this kind of obstruction and gridlock. The American people want Washington to work for American families once again.

I am on their side, which is why I propose an important change to the rules of the United States Senate. The present Republican Leader himself said, “The Senate has repeatedly changed its rules as circumstances dictate.” He is right. In fact, the Senate has changed its rules 18 times by sustaining or overturning the ruling of the presiding officer in the last 36 years, during the tenures of both Republican and Democratic majorities.

The change we propose today would ensure executive and judicial nominees get an up-or-down vote on confirmation – yes or no. This rule change will make cloture for all nominations other than Supreme Court nominees a majority threshold vote – yes or no.

The Senate is a living thing. And to survive, it must change. To the average American, adapting the rules to make Congress work again is just common sense. This is not about Democrats versus Republicans. This is about making Washington work – regardless of who’s in the White House or who controls the Senate. To remain relevant and effective as an institution, The Senate must evolve to meet the challenges of a modern era.

I have no doubt my Republican colleague will argue the fault lies with Democrats. I can say from experience that no one’s hands are entirely clean on this issue. But today the important distinction is not between Democrats and Republicans. It is between those who are willing to help break the gridlock in Washington and those who defend the status quo.

Today Democrats and Independents are saying enough is enough. This change to the rules regarding presidential nominees will apply equally to both parties. When Republicans are in power, these changes will apply to them as well.  That’s simple fairness. And it’s something both sides should be willing to live with to make Washington work again.

This is, as Joe Biden once said with another word interspersed, a Big Deal.  I’ve been a skeptic on filibuster reform for years because I feared that Republicans would use it as a tool against Democrats when the worm inevitably turned — but taking out its application to the Supreme Court and to legislation wins my support.  Republicans already get pretty much whoever they want nominated to positions — and Democrats can’t have much of a worse situation than they have right now.

Republicans pushed the filibuster too far — and now they have broken it.  Thanks to Reid, it will be only partially broken, and will still serve its purpose as applied to legislation.  But finally, almost five years after taking office, President Obama may finally be able to have the right to staff executive and judicial positions that his predecessors have enjoyed.  It’s way past time for that.

And, as this post was being completed, that time finally came.

After years of threats and warnings that ended with a whimper, Senate Majority Leader Harry Reid (D-NV) and his Democratic majority on Thursday finally executed the “nuclear option” to end the filibuster for judicial and executive branch nominees.

Fifty-two Democrats voted against upholding the filibuster rules after Republicans again blocked cloture on the nomination of Patricia Millett to the D.C. Circuit Court of Appeals. Democratic Sens. Carl Levin (D-MI), Joe Manchin (D-WV) and Mark Pryor (D-AR) voted with Republicans to sustain the filibuster rules.

This is what you get when your obstruction creates a situation where things pretty much literally cannot GET worse then they already are.

Addendum:  To be fair to those on the other side, a longtime contributor (whose name I’ll happily substitute in here upon acknowledgement of that preference) thinks that you ought to read this:

About Greg Diamond

Somewhat verbose attorney, semi-disabled and semi-retired, residing in northwest Brea. Occasionally ran for office against jerks who otherwise would have gonr unopposed. Got 45% of the vote against Bob Huff for State Senate in 2012; Josh Newman then won the seat in 2016. In 2014 became the first attorney to challenge OCDA Tony Rackauckas since 2002; Todd Spitzer then won that seat in 2018. Every time he's run against some rotten incumbent, the *next* person to challenge them wins! He's OK with that. Corrupt party hacks hate him. He's OK with that too. He does advise some local campaigns informally and (so far) without compensation. (If that last bit changes, he will declare the interest.) His daughter is a professional campaign treasurer. He doesn't usually know whom she and her firm represent. Whether they do so never influences his endorsements or coverage. (He does have his own strong opinions.) But when he does check campaign finance forms, he is often happily surprised to learn that good candidates he respects often DO hire her firm. (Maybe bad ones are scared off by his relationship with her, but they needn't be.)