So, Sen. Chuck Grassley (R-IA) is itching for a fight on the filibuster. Let's give it to him. More than that, let's take it to him. It looks ever more likely that Senate Democrats are preparing to do just that.
After Senate Republicans -- all but Collins (R-ME) and Murkowski (R-AK) -- filibustered another highly qualified Obama nominee to the U.S. Appeals court (that's two, with a filibuster on the third of the three nominees expected early next week), a number of high-profile Democratic Senators threatened to go nuclear on them -- ending the filibusters and pushing through the nominations with a simple majority vote.
In response, Grassley had this to say:
All I can say is this: be careful what you wish for. I've come to the conclusion that if the rules are changed, at least we Republicans will get to use them when we're back in the majority. If the Democrats are bent on changing the rules. Go ahead. There are a lot more Scalias and Thomases out there we'd love to put on the bench.
The hypocrisy of Chuck Grassley knows no bounds. Antonin Scalia's nomination by Ronald Reagan to the U.S. Supreme Court was approved 98-0 in 1986. Could you imagine any Obama-nominated candidate for the Supreme Court getting approved 98-0 today? How about Justice Thomas? He was confirmed 52-48, in a Senate with a Democratic majority. Could you imagine a Mitch McConnell-led Senate approving an Obama nomination to the Court of someone as far to the left as Thomas is to the right (accusations of sexual assault against Thomas aside)? And wait a minute, I thought it took sixty votes to break a filibuster. The forty-eight who voted no -- or even just the forty-six Democrats who voted no -- could easily have filibustered Thomas's nomination. It wasn't done. Then.
The one time a Supreme Court nomination was filibustered was 1968, when Lyndon Johnson nominated liberal Associate Justice Abe Fortas to be Chief Justice. The filibuster was sustained by forty-three Senators voting in favor, a coalition dominated by Republicans and conservative Southern Democrats. Chief Justice Earl Warren had announced his retirement in June 1968 specifically so that LBJ, not Richard Nixon (the favorite to win the White House that fall), would nominate his successor. The Chief's seat ended up going to Nixon's nominee, Warren Burger, who was confirmed 74-3 in 1969 by a Senate with a fourteen seat Democratic majority.
More recently, the Senate confirmed Samuel Alito (whose replacement of Justice Sandra Day O'Connor moved the court rightward, the first significant change in direction caused by the appointment of a new justice in a generation) in 2006 by a vote of 58-42. Again, those forty-two (forty-one Democrats plus then-Republican Lincoln Chafee) could have sustained a filibuster. One was mounted, but enough Democrats voted with Republicans to defeat it and move to a final vote on Alito's nomination.
Yet Grassley's Republicans, in the minority, want to filibuster any judicial nominee that moves, as well as just about any other Obama Administration nominee -- even to a Cabinet post as high-ranking as Secretary of Defense. Grassley's citing of Clarence Thomas is just another in the long line of Republican hypocrisies.
We've heard, in recent days, strong comments on filibuster reform from Senators Reid (D-NV), Merkley (D-OR), Durbin (D-ILL), and Leahy (D-VT), the last of which is "huge" because the chair of the Senate Judiciary Commitee has long been reluctant to go nuclear. Citing the 2005 "Gang of 14" deal to avoid Democratic filibusters on George W. Bush's nominees -- according to which Democrats agreed to reserve filibusters to extraordinary cases -- Sen. Leahy said the credibility of Republicans has been "shredded" due to their recent abuse of the filibuster. It's worth noting that all seven Democrats from that Gang of 14 voted against the aforementioned filibuster of Samuel Alito.
Another Democratic Senator -- Elizabeth Warren -- put it all together, denouncing Republican obstructionism across the board:
So far [Republicans] have shut down the government, they have filibustered people [President Obama] has nominated to fill out his administration and they are now filibustering judges to block him from filling any of the vacancies with highly qualified people.We need to call out these filibusters for what they are: Naked attempts to nullify the results of the last election -- to force us to govern as though President Obama hadn't won the 2012 election.
If Republicans continue to filibuster these highly qualified nominees for no reason other than to nullify the President's Constitutional authority, then senators not only have a right to change the filibuster rules -- senators have a duty to change the filibuster rules.
Man, I like that woman. And she's right about the larger point. The way Republicans are using the filibuster is just as beyond the pale as was shutting down the government and threatening to default on our debt if they didn't get what they wanted -- despite holding only one house of Congress (and even that in large part thanks to gerrymandering). As a group, their actions make clear that they fundamentally reject the very legitimacy of the Democratic Party to govern and, in particular, of Barack Obama to serve in our nation's highest office. Marge Baker at People for the American Way characterized this across-the-board Republican obstructionism as "the Nullification Strategy."
Republicans have sought, as a rule, to use every tactic imaginable to block the initiatives and policies proposed by this president. They've done so since the night of his inauguration. The use of the filibuster by the Republican minority to block President Obama's nominees (judicial and executive branch) is part of an unprecedented ratcheting-up of the use of that tactic. As Gail Collins so wonderfully put it, we're now at a point where the nomination of a new Federal Reserve Chair cannot come to a vote until Sen. Lindsey Graham (R-SC) decides there's been sufficient discussion of Benghazi (there's a reason Collins just got named to the Pulitzer Prize Board). Just look at the numbers:
Republicans have broken the filibuster, they have abused it far beyond the point of rehabilitation. And it's important to remember that -- despite what many think -- the filibuster was not designed by the Founding Fathers as a means to brake the legislative ambitions of the majority party or to protect the right of senators to be heard. Such an idea, according to political scientist Sarah Binder, is "hogwash." It wasn't designed by the Founding Fathers at all. It was a historical accident. The Senate was born with the ability to end debate and move to a final vote on a given matter exactly as the House of Representatives does, with a simple majority vote. But in 1805 senators eliminated the rule that allowed them to end debate (that'll teach them to listen to Aaron Burr, who said such a rule was unnecessary).
It doesn't appear that Harry Reid has the votes he needs to invoke the nuclear option, at least not yet. But I can't wait to see the look on Chuck Grassley's face when Reid does.