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New York Times: Reproductive-Rights Cases Influenced Filibuster Rule Change

New York Times: Reproductive-Rights Cases Influenced Filibuster Rule Change

December 2, 2013 — Recent court decisions regarding abortion and contraception played a significant role in Democratic senators' decision last week to change the filibuster rules so that they can more easily confirm President Obama's judicial nominees, the New York Times reports (Peters, New York Times, 11/29).

On Thursday, the Senate approved the change by a 52-48 vote, with all but three Democrats voting in favor of the change and every Republican voting against it.

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 (Women's Health Policy Report, 11/22).

Recent Court Cases Highlighted in Debate

According to the Times, two recent federal appeals court decisions -- one regarding a Texas law (HB 2) that requires abortion providers to have admitting privileges at local hospitals and another involving the federal contraceptive coverage rules -- "became the decisive factor in the filibuster fight." The Texas ruling has forced abortion clinics in the state to close, while the ruling in contraception cases allowed a business to refuse to provide contraceptive coverage to its workers.

Prior to the vote on the rule change, Senate Majority Leader Harry Reid (D-Nev.) warned Democrats, "These are the kinds of decisions we are going to have to live with" if new rules are not implemented.

Democrats also noted that they had allowed confirmation of the conservative judges now ruling in abortion cases and that the Republicans' filibuster was blocking nominees to U.S. Court of Appeals for the D.C. Circuit, which issued the contraception decision (New York Times, 11/29).

'Blue Slip' Could Still Stall Judicial Nominees

Despite the filibuster rules change, Republican senators could still use the "blue slip" rule to block nominees to most of the vacant federal appeals court seats, the Times reports.

Under the custom, both home-state senators sign off on a blue slip to allow a confirmation hearing for nominees to vacant seats associated with their states, and presidents generally do not make nominations unless both of those senators consent. According to the Times, all but one of the 12 appeals court seats expected to be vacant by the end of 2014 are associated with a Republican senator.

Depending on the fallout from the filibuster change, the blue slip could come under new scrutiny, according to the Times.

Any change to the rule would be at the discretion of Senate Judiciary Committee Chair Patrick Leahy (D-Vt.), who has enforced the rule to date. In a statement after the vote on the filibuster change, Leahy expressed his support for the blue slip rule, provided it is not abused.

"I assume no one will abuse the blue slip process like some have abused the use of the filibuster to block judicial nominees on the floor of the Senate," he said, adding, "As long as the blue slip process is not being abused by home-state senators, then I will see no reason to change that tradition" (Savage, New York Times, 11/28).