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Senate's Change in Filibuster Rules has Deep Ramifications for Judiciary

Senate's Change in Filibuster Rules has Deep Ramifications for Judiciary

November 22, 2013 — On Thursday, President Obama applauded Senate Democrats for voting to eliminate most filibusters on presidential nominees, saying that too many of his nominees and initiatives have been blocked by Republicans' "unprecedented pattern" of partisan obstruction, USA Today reports.

Obama said that "neither party has been blameless for these [filibuster] tactics," but "a deliberate and determined effort to obstruct everything -- no matter what the merits, just to refight the result of an election -- is not normal." He added that only 20 nominees to executive jobs had been filibustered in the 60 years prior to his taking office in 2009, compared with the "nearly 30 nominees [who] have been treated this way" after he became president (Jackson, USA Today, 11/21).

Details of Vote

The Senate approved the change in filibuster rules by a 52-48 vote, with all but three Democrats voting for the new change and every Republican voting against it (Kane, Washington Post, 11/21).

Under the new rules, the Senate will be able to end debate on executive and judicial branch nominees with a simple majority rather than the traditional supermajority of 60 votes. The change does not apply to Supreme Court nominations or legislation, but it does apply to all 1,183 executive branch nominations that require Senate confirmation (Peters, New York Times, 11/21).

Fight Over D.C. Circuit Drives Change

According to the Washington Post, the "immediate rationale" for the move was to allow the confirmation of three of Obama's judicial nominees to the U.S. Court of Appeals for the District of Columbia Circuit (Kane, Washington Post, 11/21). The court is widely regarded to be second in influence only to the Supreme Court and plays a significant role in determining whether federal regulations are upheld or struck down (Goldfarb, Washington Post, 11/21).

On Thursday, the Senate acted immediately after the change was passed to confirm one of those nominees, attorney Patricia Millett. According to the New York Times, the Senate is expected to confirm the other two nominees -- Nina Pillard and Robert Wilkins -- when the chamber returns from its Thanksgiving recess (New York Times, 11/21). The confirmation of all three nominees will give Democrats a 7-4 advantage on the influential court (Goldfarb, Washington Post, 11/21).

According to the Times, there are 59 nominees to executive branch positions and 17 nominees to judicial branch positions awaiting Senate confirmation (New York Times, 11/21).

Rule Change Could Favor Either Party

According to the Wall Street Journal's "Washington Wire," conservative groups said the rules could eventually allow Republicans to more easily install GOP nominees if they gain control of both the White House and Senate. The change will make it "that much easier" to put more "(Antonin) Scalias and (Clarence) Thomases ... on the bench," said Carrie Severino, chief counsel and policy director at the Judicial Crisis Network, referring to two conservative Supreme Court justices (Meckler, "Washington Wire," Wall Street Journal, 11/21).

Senate Minority Leader Mitch McConnell (R-Ky.) echoed those sentiments, saying that Democrats might eventually "regret" their vote (New York Times, 11/21). "The solution to this problem is at the ballot box," he said, adding, "We look forward to having a great election in November 2014."

Senate Majority Leader Harry Reid (D-Nev.) defended the move, saying, "We understand all the considerations ... But let's be realistic. What could [Republicans] do more to slow down the country? What could they do more than what they've already done to stop the Senate from legislating?"

Alliance for Justice President Nan Aron said, "There was no choice ... The Republican minority has turned the existing rules into weapons of mass obstruction" (Fram, AP/Sacramento Bee, 11/22).

Women's Groups Largely Silent

Planned Parenthood Federation of America and NARAL Pro-Choice America both declined to comment on the change, the Journal reports, adding that their silence leaves it unclear whether the groups are concerned about their ability to block future objectionable nominees.

Susan B. Anthony List criticized the move, saying that Democrats had "flung open the doors to radically pro-abortion nominees" ("Washington Wire," Wall Street Journal, 11/21).