THE BLOG
11/22/2013 05:26 pm ET Updated Jan 25, 2014

Nuking Obstruction: This Could Be the Start of Something Big

Since the beginning of the Obama presidency, Republicans in the Senate have used the filibuster and a host of other procedural tactics to delay, obstruct, and deny final votes to the president's judicial and executive-branch nominees. They have broken through every barrier of tradition, constitutional responsibility, and decency. But finally, in the last several weeks they overplayed their hand.

The last straw (actually several straws), was the filibuster of Congressman Melvin Watt's nomination to head the Federal Housing Finance Agency, and the unyielding, unprecedented, unprincipled group blockade of the President's nominees to the U.S. Court of Appeals for the D.C. Circuit -- Patricia Millett, Judge Robert Wilkins, and Nina Pillard -- all of whom would sail easily through any sane Senate.

As usual, the Republicans' tea-party absolutism has turned around to bite them. By not giving an inch, they put Majority Leader Reid and the Democrats in the position of either changing the rules or surrendering the Senate and the President's legacy to a petulant minority bent on destruction. The fact that several Democratic senators who have long opposed rules reform threw up their hands and joined the reform movement is an indication of just how deep a hole the Republicans had dug for themselves.

The Democrats needed to act, and they did. The threshold for ending debate is now a simple majority and not a super-majority. It was an astonishing and historic moment, and a big boost for core democratic values.

The good news is that Pillard, Wilkins, Millett, and Watt can now be confirmed, as can the 14 other judicial nominees and 58 executive branch nominees who need only a yes-or-no vote to be confirmed.

That alone is worth celebrating, as is the fact that some semblance of democracy has been restored to the Senate. Maybe now we can begin the process of restoring the American people's faith in our broken government.

But there are some other good things that may flow from yesterday's historic decision that are worth noting: The public is more engaged in the issue of the courts and its now clear that when it comes to judicial nominations, elections matter; the president can think anew about the kinds of nominees he puts forward; and another bastion of obstruction, the Judiciary Committee's "blue slip" custom, can receive a long-overdue look.

Making an issue of the courts

It's no secret that the rules change stirred up a political hornet's nest. To no one's surprise, Republicans are howling with outrage, threatening to get payback in future administrations and congresses. Minority Leader Mitch McConnell said yesterday that "The solution to this problem is at the ballot box." Actually, for once, he's right. Frankly, if this episode makes the courts a bigger issue in future presidential and congressional campaigns, that's a very good thing. They should be.

Maybe something new was awakened on the Senate floor. Who would have thought there would be editorials in every corner of the country talking about judicial nominations and that comments by the thousands would flood in, responding to Huffington Post stories about judges? If this reform battle raises the political profile of judicial nominations and gets more people aroused and in the game, all the better.

Yesterday's vote also opens the door for the president to name more professionally diverse nominees. Now is the time to look beyond the normal coterie of corporate lawyers and prosecutors that currently predominate, and seek out public interest lawyers, public defenders, environmental attorneys, labor lawyers, or others who have spent their careers fighting for the public good. The president has done a remarkable job in advancing the cause of diversity in the traditional sense, but professional diversity can be just as important in shaping a judiciary that understands the lives of everyday Americans.

We also think that one of the biggest consequences of the change in Senate rules is that highly qualified men and women with superb legal minds who have been reluctant to put their names forward due to the current level of nastiness and the endless delays foisted on them by the Republicans, may now be willing to serve. That's good news for our judicial system, which deserves the best possible jurists.

With the major mechanism to gridlock finally broken, now is the time to aim for the ultimate goal: a nominee in the coming year for every vacant federal judgeship. The number of judgeships without a nominee is currently 42; 17 more will be coming soon. But getting there will not be easy. Yesterday's reform is not the end of the story; it's just the beginning of the next chapter.

Clearly, going forward, the Republicans will be in no mood to be cooperative and will almost certainly use every tactic they can think of to throw a wrench into the process. They were doing exactly that before; there's no reason to think anything will change now. Their goal, though, will have to shift from preventing final yes-or-no votes to preventing nominees from ever reaching the floor at all.

Blue slip blues

That simple fact leads inevitably to something called the "blue slip." If you think the filibuster rules are arcane, this one is even more so. Whenever a nominee is put forward by the president, the Judiciary Committee sends a letter (it's actually blue) asking the home-state senators to express approval or disapproval. Under the current custom (it's not an actual rule), if either says no the nomination dies, which gives any senator a de facto veto over any nominee from his or her state. Actually, if a senator wants to stop someone he or she can employ a passive-aggressive approach and simply not return the blue slip at all. And senators don't need to explain why. Republicans do this now on a regular basis, and may rely on it more after the rules change in the 31 states that have at least one Republican senator.

At some point we think the Senate Judiciary Committee will have no choice but to revisit the current blue slip process, or else a large chunk of the country will not have a fully functioning judicial system. The president will also have to reassess his current practice of relying on Republican senators for names of nominees, which is the other way Republicans can take their ball and go home. They just won't send any forward. Then it will be up to President Obama whether he wants to continue to play this game.

Yesterday's reform of the Senate's procedures was a wonderful and welcome victory, but no one should think it ended anything. The fight goes on; as it should. The stakes are huge. But by overplaying their hand, the intransigent minority has foolishly awakened a movement that may prove even more valuable in the long run than any change to the rules could ever be.

Read more about the need for Senate rules reform.

Read more about the D.C. Circuit