THE BLOG
06/10/2013 10:17 am ET Updated Aug 10, 2013

Time to Go Nuclear on the Filibuster

Republicans in the U.S. Senate have routinely used the filibuster -- and the threat of the filibuster -- to deny President Obama and the Democrats their legislative agenda. In their defense, Republicans point out that the use of this parliamentary method of blocking votes is nothing new. Democrats filibustered some of George W. Bush's appointees. Southern Dixiecrats used it in spectacular fashion to block civil rights legislation for decades.

But now there is evidence that the filibuster has flourished uniquely under the Republican Senate minority of recent years. Professor Sheldon Goldman, a political scientist at the University of Massachusetts, found that in the current Congress, Obama's nominees have faced a level of obstruction that is "the highest that's ever been recorded.... In this last Congress it approached total obstruction or delay."

Goldman concludes that the level of obstruction since 2010 is significantly higher than in any of the years Bush was president and Democrats were a minority in the Senate -- the parallel to the current situation. Furthermore, from the Alliance for Justice:

During President Obama's first term, current vacancies [in the judicial branch] have risen by 51%. This trend stands in stark contrast to President Clinton and President [George W.] Bush's first four years, when vacancies declined by 65% and 34%, respectively.

Today's partisan maneuvering is far more vicious than what happened under the previous Democratic minority. Back then, Democrats blocked a few individuals here and there, such as when they filibustered Miguel Estrada, Bush's nominee to the federal Court of Appeals for the D.C. Circuit (they did eventually allow a vote on the confirmation of Thomas B. Griffith to the same seat). Nowadays, the Senate minority is seeking to block as many nominees as possible in order to prevent Obama from moving the judiciary in a direction that fits with his thinking. Republican senators don't even have the votes to defeat these nominees because voters elected a Democratic Senate majority as well as a Democratic president.

And the filibuster is not just being used with judicial nominees. Republicans are determined to stop two major government agencies from being able to function: the National Labor Relations Board and the Consumer Financial Protection Board. The NLRB goes back to legislation passed in 1935, but Republicans have decided that they will filibuster the nomination of any new members, effectively incapacitating the board now that the terms of three of its five members have expired.

As for the CFPB, Republicans plan to filibuster the nomination of anyone to be its director, in hopes of denying the agency certain powers that can only be exercised by someone holding that title. Liberal blogger Kevin Drum, writing in The Nation, has argued that the GOP's actions here are "explicitly aimed at shutting down these agencies," and called them an attempt at "nullification." In other words, if you don't like a law, use the filibuster to neutralize it. If you don't like the results of an election, use the filibuster to sabotage the other side's agenda. It does not matter that Obama has been elected and reelected president. Republicans have made a decision that they will use the filibuster, the hold, and other tactics to ensure that he is simply unable to place people into the judiciary and various executive-branch positions.

Goldman's analysis gives statistical backing to the claims of many Washington insiders, who acknowledge the ways that Democrats have contributed to political gridlock and yet are increasingly unwilling or unable to defend the scorched-earth tactics of Republicans. In a recent book, political scientists Thomas Mann and Norman Ornstein -- well-respected voices in the Beltway crowd -- argue that Congressional dysfunction has reached a dangerous level, thanks in large part to the extremism of Republicans, whom Mann and Ornstein characterize as "dismissive of the legitimacy of its political opposition."

At last, Obama has decided to push back. He recently nominated three people to the D.C. Circuit, the same federal court that Estrada was nominated for, considered the second-highest court in the land and a stepping-stone to the Supreme Court. It is worth noting that -- despite Republican claims that there's no need to fill the three openings on that court because it is "underworked" -- there are now 188 pending cases per judge, up from 119 in 2005. Clearly, those openings need to be filled.

Senator Harry Reid (D-NV), Majority Leader, official photo

There is talk that Senate Majority Leader Harry Reid will consider doing away with the filibuster for all nominations to the judiciary or executive branch if this obstruction continues. Obama has told Reid he supports such a move. Reid can do so with the assent of a simple majority of senators, but such an action is so controversial that pundits have taken to calling it the "nuclear option."

It's time to go nuclear. The facts that Goldman's study lays out make it clear that Senate Republicans don't believe Democrats, even when they win an election, should be allowed to govern. After the last election, Reid agreed to modest measures of "filibuster reform" that Republicans promptly ignored. Now it's time to call out their strategy of blanket obstruction for what it is: the subversion of democracy.

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