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‘Nuclear option’ to clear way for federal nominations inflames debate

November 21, 2013 at 12:00 AM EDT
Senate Democrats used their majority to pass a rules change that makes it easier to act on most presidential judicial nominations. Now only a simple majority will be required instead of the 60 votes in the past to overcome certain filibusters. Gwen Ifill gets debate from Sen. Ron Johnson, R-Wis., and Sen. Jeff Merkley, D-Ore.
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GWEN IFILL: Today’s long-threatened Senate shakeup will force drastic change on how the chamber does its business and break a growing logjam over the confirmation of the president’s judicial nominees.

WOMAN: Senator voting in the affirmative.

GWEN IFILL: Today’s 52-48 vote overturned decades of Senate precedent. It was opposed by all Republican senators and three Democrats. The presiding senator, Vermont Democrat Patrick Leahy, made it official.

SEN. PATRICK LEAHY, D-Vt.: So, under the precedent set by the Senate today, November 21, 2013, the threshold for cloture on nominations, not including those to the Supreme Court of the United States, is now a majority.

GWEN IFILL: Since 1975, it’s taken 60 votes to overcome filibusters against presidential nominees, but, today, Majority Leader Harry Reid invoked the so-called nuclear option, allowing confirmation with a simple majority.

Republicans, he said, have abused the process.

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SEN. HARRY REID, D-Nev.: The American people are fed up with this kind of obstruction and gridlock. In the history of our country, some 230-plus years, there have been 168 filibusters of executive and judicial nominations. Half of them have occurred during the Obama administration.

GWEN IFILL: Republicans disputed the numbers.

Minority Leader Mitch McConnell insisted the Senate has confirmed 215 of President Obama’s nominees and rejected only two.

SEN. MITCH MCCONNELL, R-Ky.: This was nothing more than a power grab in order to try to advance the Obama administration’s regulatory agenda, and they just broke the Senate rules in order to exercise the power grab.

So, I would sum it up by saying it’s a sad day in the history of the Senate. After today, advise and consent probably means to them 100 percent consent.

GWEN IFILL: Democrats have threatened to change the rules before, but matters finally came to a head this week when Republicans blocked three nominees to the powerful U.S. Circuit Court of Appeals in the District of Columbia.

They include Patricia Ann Millett, an appellate lawyer in Washington, Georgetown University law professor Cornelia Pillard, and federal district court Judge Robert Wilkins.

At the White House, President Obama applauded the vote. He said both parties have misused filibusters over the years, but that Republicans have been especially reckless and relentless.

PRESIDENT BARACK OBAMA: But today’s pattern of obstruction, it just isn’t normal. It’s not what our founders envisioned. A deliberate and determined effort to obstruct everything, no matter what the merits, just to refight the results of the election is not normal, and for the sake of future generations, we can’t let it become normal.

GWEN IFILL: The new simple majority rule applies to nominees for federal judgeships and federal offices. It will still take 60 votes to defeat filibusters of Supreme Court nominees and legislation.

The rules change inflamed debate today on Capitol Hill.

I spoke a short time ago to two lawmakers in the middle of it, Republican Senator Ron Johnson of Wisconsin and Democratic Senator Jeff Merkley of Oregon.

Senators, welcome.

Explain to me how this all came to a head today. This is a discussion we have had for a long time, this discussion about filibuster reform, starting with you, Senator Merkley.

SEN. JEFF MERKLEY, D-Ore.: You bet.

This is all about to restore the constitutional framework of the balance between the benches of government. The Senate is supposed to service advice an consent on nominations, but it’s not supposed to be able to systematically undermine the executive branch and the judicial branch.

And what brought this to a head today was a decision by the minority that they were going to block any nominee, no matter their qualifications, no matter their high character, if the president — if they were nominated by President Obama. And that type of approach is just completely unacceptable.

GWEN IFILL: Senator Johnson, on the losing side of this today, is this the way you saw it, that this was about Senator Obama — I mean, President Obama’s nominees?

SEN. RON JOHNSON, R-Wis.: No, Gwen, this is a very sad day for the Senate.

Basically, Senator Harry Reid and his colleagues on the Democrat side have basically broken the rules of the Senate to change the rules, and this wasn’t about President Obama not getting his nominations. The vast majority, well in excess of 95 percent to 98 percent of his nominations, have been approved in a pretty expeditious basis.

This is just a blatant power grab, I guess to probably change the subject off the disaster is that is the implementation of the health care law, but also to pack the D.C. Circuit Court, which is going to be the regulating court of all of the — or basically the deciding court on all these regulations for Obamacare and all the regulations that President Obama is going to be implementing through his regulatory agencies because he can’t pass them as laws.

GWEN IFILL: Well, let me ask you and then Senator Merkley as well, the basic questions for many people watching this who don’t know from nuclear options, they want to know what was the virtue in having a 60-vote threshold in the first place, and what is the disadvantage of getting rid of it, starting with you, Senator Johnson?

RON JOHNSON: Well, first of all, the advantage is, as Senator Merkley said, advise and consent.

What consent is there if you have to agree to every nominee of this president? Since 2009, we have approved more than 200 of President Obama’s judicial appointments and we have only blocked two. So that’s an incredibly high rate of approval. So at some point in time, the minority does have to have some rights if the advise and consent clause has any meaning whatsoever.

GWEN IFILL: Senator Merkley, you want to weigh on that?

JEFF MERKLEY: You bet.

The tradition has been up-and-down votes with rare exception. But what we have had instead is, in the history of the United States of America, there have been 23 filibusters of district court nominees; 20 of those have been by the Republican minority during President Obama’s presidency, 20 out of 23 in our entire history.

And we can take those same statistics and go to area after area. This perpetual war on President Obama has to come to an end. It’s not serving the American people. The American people want us solving problems on the floor of the Senate, addressing the issue of living-wage jobs, addressing the issue of low employment, addressing the issue of the high expense of college.

What they don’t want is our time wasted throughout the entire year on perpetual filibusters of nominees.

GWEN IFILL: Senator Merkley, your — the president whose name you keep invoking, when he was a senator in 2005, said there should be — that the rules are the rules and you shouldn’t be changing them in midstream. What’s different now?

JEFF MERKLEY: Well, let’s take 2005. In 2005, a deal was reached by a group of seven Republicans and seven Democrats.

The deal was that there would be no change in the rules if the Democrats agreed to only filibuster for rare exceptional circumstances, those being terrible problems with character or experience. This deal was completely honored by the Democrats. In fact, they didn’t filibuster a single judge thereafter under the Bush administration.

But, immediately upon the Republicans becoming the minority party, they broke the deal, and the statistics I have given you just reflected that. And they didn’t break it just on judicial nominees. They did it on executive nominees as well.

Now, Harry Reid and the leadership have repeatedly tried to restore the social contract, restore the understanding of filibuster only on rare exception. But that hasn’t been possible.

GWEN IFILL: Well, let me ask Senator Johnson the flip side of this, which is that Senator McConnell, now the minority leader, also in 2005, argued that there should be up-or-down votes on nominees. That’s when there was a Republican president. What’s different now?

RON JOHNSON: Well, again, I just got here in 2010.

Under the rule of Senator Harry Reid — and the fact of the matter, the reason — the reason the Senate is so dysfunctional is because of his leadership or lack of leadership. We haven’t passed an appropriation bill in the Senate in over two years. That’s a dysfunction.

And all this talk about filibuster, it’s not real filibusters, because Senator Harry Reid fills up the amendment tree, doesn’t allow Republicans to offer any amendments. He files cloture and then, all of a sudden, he accuses us of doing the filibustering.

I realize this is arcane Senate rules. The dysfunction is all about Senator Harry Reid’s utter lack of leadership and just totally not able to actually have the Senate function and respect minority rights whatsoever. This is a raw power grab. And we saw what happened last time the Democrats had total power in the Senate. We passed Obamacare. America is experiencing the disaster of that law right now.

GWEN IFILL: Well, let me ask you both this question. And I guess it’s what I was getting to in the last one as well.

Does whether you think this is a good idea, these rules changes are a good idea depend on whose ox is being gored, that is, who is in the minority, that if you’re in the minority, you want up-or-down votes, and if you’re in the majority, you want to have the — or the other way around — if you’re in the majority, you want up-or-down votes, and if you’re the minority, you want to have that 60-vote threshold that you can deny the other person.

Is that what this comes down to, Senator Merkley?

JEFF MERKLEY: Well, Gwen, let’s recognize what has happened in America, which is much more polarization.

So in the past, when there was an understanding of the rare use of the filibuster, it worked, because senators worked together across the party boundary. But now what we have is a situation for many senators that their base demands that they exploit every rule in order to obstruct any bill from the Democratic side or any nominee from the Democratic president.

That change has resulted in many senators who said in 2005 that they would always support up-and-down votes whether they were in the minority or the majority. But when they were in the minority, they changed their position, because their base demanded it. It’s unfortunate. It reflects a bigger problem in society, but, within that structure, it is our responsibility to make the Senate serve the American people and enable it to take on those big challenging issues facing America, improving the base for the American family, success of the middle class.

GWEN IFILL: Senator — Senator Johnson, what about that whose-ox-is-being-gored question?

RON JOHNSON: Well, first of all, Gwen, we already have one chamber in Congress that’s ruled by the majority. And that’s the House.

The Senate was supposed to be more deliberative. It was supposed to protect the minority rights. And Senator Robert Byrd has got to be rolling over on his grave, based on what his colleagues, his Democratic colleagues have done today.

This is a very sad day. And, you know, the fact of the matter is, the way the rules in the Senate should be changed is an incredibly bipartisan way before the start of every Congress by a two-thirds vote. That’s how you get bipartisanship. That’s how you start healing this divide that really, really began with the totally partisan vote around Obamacare.

That split our parties. That split this nation. And it hasn’t been healed yet. And I’ll tell you, today’s action certainly isn’t helping heal that division. It’s widening it. It’s a very sad day for the United States Senate and for America.

GWEN IFILL: That’s what I was going ask you both, as a final question.

Do you feel like the Senate is more divided today than it was before, Senator Merkley?

JEFF MERKLEY: You know, the vision of the Senate was it, it would be a cooling saucer. That’s the way George Washington described it. That’s why we have staggered terms. That’s we have six years.

But no one intended for the Senate to be a deep freeze. But that’s what it’s come with the abuse of the filibuster. What I hope is that both sides will see the success of improving the function of the Senate that will flow from today’s action and will join together in a bipartisan way to take on the dysfunction on the legislative side which is so much hoped for by the American people.

GWEN IFILL: Final word, Senator Johnson?

RON JOHNSON: Gwen, the Senate is in deep freeze because Senator Harry Reid doesn’t move bills, doesn’t bring appropriation bills.

It’s the primary function of Congress to authorize and then appropriate funds for federal government activity. Senator Harry Reid is not doing any of those things, basically digging in his heels, making sure that Obamacare becomes the permanent law of the land. And, again, we’re understanding the exact — the harmful consequences of majority rule in the Senate, and Obamacare is exhibit A from that standpoint.

GWEN IFILL: It sounds like a cooling saucer might be in order at this point.

Senator Ron Johnson, Republican, Senator Jeff Merkley, Democrat, thank you both for joining us.

RON JOHNSON: Have a great day.

JEFF MERKLEY: Thank you, Gwen. Take care now.