Roll Call: Latest News on Capitol Hill, Congress, Politics and Elections
August 1, 2014

Democrats Closer to Deploying ‘Nuclear Option’ on Judges

Markup 002 062112 445x307 Democrats Closer to Deploying Nuclear Option on Judges

(Chris Maddaloni/CQ Roll Call File Photo)

Democrats inched closer to another “nuclear” rules standoff Tuesday evening on the heels of another filibuster vote on one of President Barack Obama’s nominees to the D.C. Circuit Court of Appeals.

Several Democratic senators, led by Judiciary Chairman Patrick J. Leahy of Vermont, met with reporters late Tuesday with another round of warnings about the chances that not filling the seats on the appellate court could lead to a “nuclear option” rules debate.

“I’ve said it before and I’ll say it again. There comes a tipping point, and I’m afraid we’ve reached that tipping point,” Majority Whip Richard J. Durbin of Illinois said at the news conference. “We cannot ask people in good faith to submit their names and reputations to this judicial process if they’re going to be treated so unfairly and unjustly by the Republicans and their filibusters.”

“My experience is they’ve been used responsibly. Very, very rarely you’d see filibusters. That seems to become a thing of the past. We see more filibusters in a year than I saw in 35 years,” Leahy said. “I think we’re at the point where there will have to be a rules change. You cannot say that one president can have his way on qualified judges, another president cannot have his way, or we can vote for qualified men but not qualified women. … It does not help in any way the credibility of the United States Senate.”

At one point during the news conference, Leahy slammed the lectern in frustration, saying that some GOP senators from the 2005 “gang of 14″ deal that averted a “nuclear option” change to the Senate’s nomination procedures for judges back then were voting against cloture on the Obama picks.

Both parties were reprising familiar arguments about the caseload on the circuit court Tuesday, with GOP senators contending that there are too few cases filed to fill the three remaining vacant seats, a charge that Democrats dispute for several reasons, including an argument about the complexity of the cases on the docket.

Advocates for changing the Senate’s cloture rules with a simple majority vote sounded emboldened by the recent D.C. Circuit votes, including Oregon Democrat Jeff Merkley.

“This obstruction is outrageous. In baseball, it’s three strikes and you’re out. Republicans have struck out when it comes to keeping their promises on nominees. In January the Minority Leader promised to return to the ‘norms and traditions’ of the U.S. Senate on nominations, which is to hold an up and down vote with rare exceptions,” Merkley said in a statement. “Given that shattered promise, a majority of Senators must change the rules to restore the Senate to its historic role.”

The latest exchange came after 56 senators voted in favor of invoking cloture — and thus limiting debate — on Obama’s choice of Georgetown Law Professor Nina Pillard to a seat on the D.C. Circuit, falling short of the 60 needed to break a filibuster. That followed a similar vote Oct. 31 on the nomination of prominent lawyer Patricia Ann Millett to a seat on the same court.

Judiciary ranking member Charles E. Grassley, R-Iowa, offered a floor speech Tuesday that was something of a prebuttal to statements issued by Merkley and New Mexico Democrat Tom Udall after the vote.

“Many of those on other side who are clamoring for a rules change — and almost falling over themselves for it — have never served a single day in the minority. All I can say is this: be careful what you wish for,” the Iowa Republican said on the Senate floor. “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,” Grassley said, in reference to conservative Supreme Court justices Antonin Scalia and Clarence Thomas.

Asked about Grassley’s comments, Leahy said that neither Scalia nor Thomas faced an actual filibuster.

“The nominees we’d nominate and confirm with 51 votes will interpret the Constitution as it was written,” Grassley said. “They are not the type who would invent constitutional rights out of thin air.”

“I’ve always been, I hope, an independent voice on judicial nominees, and I’ve always thought that a president deserved his team. If they are qualified, he should nominate them,” California Democrat Dianne Feinstein said. “It’s really, I think, [a] very disillusioning thing because in this body, what goes around comes around.”

Feinstein’s comments suggest another possibility: an impasse that leads to continued federal court vacancies regardless of the party in power.

Still, Republicans aren’t convinced of how far the Democrats would want to go. When the Senate floor opened for business on Tuesday afternoon, Minority Leader Mitch McConnell, R-Ky., criticized the Democrats’ focus on the D.C. Circuit seats as a diversion with the beleaguered rollout of Obamacare.

“If our Democratic colleagues are going to ignore the fact that millions of people are losing their health insurance plans, they should at least be working with us to fill judicial emergencies that actually exist, rather than complaining about fake ones,” McConnell said.

  • Correctamundo

    When they don’t get their way, it has to be changed and is a gross miscarriage of justice and an aggregious attack on the Constitution and the Senate rules (and whatever other big college words they want to throw out there). Then when the GOP sits in the WH, the Filibuster Rule is a long-standing Senate tradition and a means to keep a check on the executive branch so that he doesn’t ‘stack the court’ politically. Bunch of hypocrites.

    • Layla

      Hypocrite? Isn’t that another word for Progressive?

      • Correctamundo

        Why, yes it is. Lol

    • Larry Boston

      Yeah, Republicans never do this. Hint: bush tax cuts.

  • Stephen McDonald

    Go Nuclear already… GOP has been nothing but Obstructionist jerks during Obama’s entire tenure…

    • Vincent Bess

      The GOP didnt do it when they controlled the senate, neither should the dems.

      • Stephen McDonald

        The Dems did not filibuster EVERY appointee… Its time to go Nuclear and get the vacancies filled.

        • AdmiralXizor

          They filibustered Janice Rogers Brown – black woman.

          They filibustered Henry Saad – Arab male.

          They filibustered Miguel Estrada – Latino male.

          In all, they filibustered 10 nominees, all at the same time.

          • Stephen McDonald

            10 compared to EVERYONE!!! God, learn math.

          • evangelical

            10 minorities….think about that you racist $hit fu hker

          • Stephen McDonald

            and you are just LYING.. There are not 10 minorities in the GOP tent.. You GOP KKK POS.

          • AdmiralXizor

            GOP KKK… I guess you’re doing the oxymoron thing… Lol.

            Because I can’t be serious.

            Especially since the Democrats ADMITTED blocking Gutierrez because he was Latino. They couldn’t stand the thought that the first Latino to the Supreme Court may be nominated by a Republican… And be a conservative…

            POS, indeed.

          • Jefferson Madison

            Hey there POS. The KKK, you dumb POS, was a Southern DEMOCRAT invention. Can’t fix stupid.

          • AdmiralXizor

            10 WAS Everyone.

            Learn math.

          • victordesabata

            Obama has had to overcome a filibuster for every judicial nominee…even district court ones. That is something new that didn’t happen under Bush II.

          • AdmiralXizor

            Not even close to true. Were either of his SC nominees filibustered?

            No?

            Then start over.

          • victordesabata

            The Democrats didn’t filibuster 3 nominees to the SAME COURT in a 3 week period! This is unprecedented….

    • HopyMcChange

      The Democrats have been lying the whole time. It’s all over the news. the Rupubs were doing you ungrateful fools favors. Wake up.

    • Jefferson Madison

      Screw you. When we take over we are going to make your life a living hell you parasite on society.

      • Stephen McDonald

        whats funny about you is your moniker is the founder of the DEMOCRATIC Party… ROFLMAO.. Screw you.

        • Jefferson Madison

          Yawn. He is not the founder of today’s Democrat party. Ever hear of the Virginia and Kentucky resolutions? No? Go read them and get back to me with your tail between you legs. Those resolutions are the original foundation for the entire Tea Party movement. The right of states to nullify federal law.

          Screw you again.

  • Vincent Bess

    Use the “schumer rule”. Idealology CAN be used to judge a nominees qualifications … PERIOD!

  • Vincent Bess

    Democrats, are imply looking for obama friendly judges to uphold his policies that other courts seem to be overturning every day. I say block all of them, lest we lose every right our consitution is suppose to uphold.

  • Rick Turner

    When the Senate flips next November, DEMS will rue the day they used this in ACA law and if they pull this stunt too.

    • AdmiralXizor

      The law should be repealed through RECONCILIATION – the same way it was passed.

      • Mygoodness

        It’s not a law, it’s a rule there is no RECONCILIATION

        • AdmiralXizor

          Tomatoes, tomatoes.

          Reconciliation is an actual thing… Wait a minute – why am I being draw offsides by this garbage..?

          The point is that this can be pushed through with no threat of having to go through cloture.

    • icowrich

      If it flips, Susan Collins will be the decider on every vote. I don’t think there’ll be much rue action going on, especially given that it flips back in 2016. At any rate, I wouldn’t count on the Senate going red before 2018 or possibly 2020.

  • Mygoodness

    Tell them use the option, then on December 3, 2014 when Mitch McConnell assigns the dems to the dust bin let them scream. The democrats are about to find out that elections have consequences.

    • Christopher Rojas

      Ha ha yeah right, that’s what you tea baggers said in 2012.

      • Layla

        Remember the midterms in 2010? Look for more of that.

        • victordesabata

          Remember 2012? look for more of that :)

      • Mygoodness

        You can always tell when liberals can’t refute an argument, they go to name calling.

    • thereasonableprogressive

      When will Republicans learn that elections have consequences?

      • Layla

        Likely would have this time….and then came the disaster that is Obamacare and the loss of insurance for millions of voters with more to come when the employer mandate waivers run out. Oh, it’s going to get real ugly come election time!

        • thereasonableprogressive

          I’m afraid you are right.

      • Mygoodness

        They have, they were elected in 2010 to stop the Obama crazy train.

  • Jefferson Madison

    If they do this, when we take back the Senate and we will, impeach every judge filled using this method and remove them from office. Extreme measures require extreme responses.

    • thereasonableprogressive

      Isn’t impeachment to be used in cases of “high crimes…”? It is not supposed to be used for revenge, is it? Talk about abusing the constitution! This issue shows why the current batch of Republicans can’t be trusted with the reins of government.

      • AdmiralXizor

        Um, where were you when Bush was under constant threat of impeachment by liberals?

        • thereasonableprogressive

          Impeachment of President Bush was never seriously considered by anyone that I know of.

          • evangelical

            Because unlike Obama, Bush never lied, committed treason, or usurped the authority of Congress by lying to the American People.

          • AdmiralXizor

            Well then you really don’t know much. You have homework to do.

      • Jefferson Madison

        Obama abuses the constitution all the time. So I say make something up and get them out. Heck, ignoring the constitution is a past time in DC these days by the liberals, so I say lets all join in and see how fun things get. Liberals think only they can have fun? I say party on. Let’s roll.

      • Layla

        Who said anything about the Republicans? You’re dealing with the voters now. The same voters who want revenge for Obamacare. I can think of at least one million in CA who would love to see each of you hang today.

      • evangelical

        High crimes dot dot dot…

        You conveniently left out….AND MISDEMEANORS.

    • wildrover4

      If you impeach every judge who received an up or down vote from the federal bench, there will be none left.

      • Jefferson Madison

        Only those who are placed in using the nuclear option. They go. Period.

        • wildrover4

          And by nuclear option, you mean what then Senator Frist referred to as the Constitutional option. The Constitution contains the word consent, not filibuster. You won’t have the votes to secure a conviction in the Senate anyway. They will stay in their seats.

          • JadedFan

            You are trying to blur the real issue.

            The Democrats with Bork changed the longstanding understanding that you would not challenge based on idiology, but solely on qualifications.

            After that the rules changed, and it WAS THE DEMOCRATS WHO STARTED IT ALL.

          • wildrover4

            Actually the real issue is not whether an ideologue couldn’t get confirmed on an up or down vote 30 years ago. I have no problem with Senators voting up or down once they have allowed the vote to take place.

            The real issue is whether the minority party can filibuster a nominee, not due a lack of qualifications or extreme views, but solely due to the fact that other party nominated that candidate.

          • AdmiralXizor

            ***not due a lack of qualifications or extreme views, but solely due to the fact that other party nominated that candidate.***

            What rubbish.

            Janice Rogers Brown – black woman. Dems filibustered her to keep Bush from putting her on the Supreme Court.

            Miguel Estrada – Latino male. Dems filibustered him to keep Bush from putting the first Latino on the Supreme Court.

            Start over.

          • icowrich

            Bork wasn’t filibustered. He got an up or down vote, which is all the Dems want for Obama’s nominees. Besides, 6 GOP senators voted against Bork, too.

          • Jefferson Madison

            Who gives a crap? The Senate made the rule, so if the dems back off the rule, then we go apeshit when we take over and have some fun. I’m ready.

          • icowrich

            Best case scenario for the GOP is 51 seats (49 is more likely, I’m putting my money on 50). Even in the best case, you’d need unanimity to act. That means the most moderate Republican at any one time will be calling the shots. That means the likes of Mark Warner, Mark Kirk, Susan Collins, John McCain will have to be on board for all of this “fun” you think you’ll be having. Sanity will rule in the Senate for a good long time, whichever party is in charge.

            Of course, any bills that do get passed will see the veto stamp for the two years it takes for Dems to regains seats in 2016 (which they will do for the same reasons they’ll lose seats in ’14). The fact is, Obama just needs his appointees confirmed. He’s not looking to get much else out of the Senate, and he has nothing to fear from a GOP led one.

          • mahasw

            Mark Warner is a Democrat, not a Republican.

          • icowrich

            Sorry, I was thinking a coalition of the center…not just Republicans. But I did *say* Republican, so my bad. The point still stands. For GOP to go off the reservation the way some are implying, they’d need closer to 56-57 seats so the purple staters can sit it out.

          • AdmiralXizor

            This is funny.

            You quote Senator Frist, but NONE of the Democrats who had babies in the well of the Senate opposing him… Including Joe Biden, who called it “a naked power grab”, and Reid, who said the very idea showed “arrogance of power” (while pounding the lectern, no less).

    • victordesabata

      You know there’s nothing in the Constitution about the filibuster. There would be nothing unconstitutional about a judge who is confirmed due to a majority vote. Actually that’s the constitution in action. The filibuster prevents that….

      • Jefferson Madison

        Who cares? Under Obama the constitution is dead. So when we ake over I say we shove this crap right back in your faces. Impeach every single liberal judge just because. Arrest all EPA officials just because. Use an EO to pass laws like stringent fines for any company that hires illegal immigrants, something along the lines of 50 grand per infraction. Heck, lets have some fun as the ship goes down.

        • sunnblue

          What a jaded attitude you have. The Republicans weren’t circumventing anything when the House Rules were changed to eliminate anyone bringing a motion to the floor, except one of their own. Cheating? Ya’ think?

        • icowrich

          If only Republicans running for office were as up-front about their intentions as you are…

  • fbowman

    Do it Dems!! When the Senate changes as it always does, you can sit there and cry your blues.

    • wildrover4

      And just what will you do? Refuse to confirm any of the President’s nominees? How is that different than what you are doing now?

      • JadedFan

        Stretching executive orders to mean governing like a king as Obama has done.

        Passing major legislation with 51 votes in the middle of the night and ignoring the minority completely like Reid has done.

        Democrats, like all fanatics, believe so thoroughly in their worldview that they killed moderation by completely destroying understandings that had been there for generations, and now are mourning what they created.

        • wildrover4

          Your diatribe aside, you didn’t answer my questions.

          • evangelical

            Yes he did…an imperial president doesnt get to appoint his communists

        • Larry Boston

          George bush and the bush tax cuts? I mean same thing.

          • AdmiralXizor

            Did the Bush tax cuts pass cloture… YES.

  • therightmano

    Please do it, Dems. I am thinking Ted Cruz will be a great nominee for the Supreme Court should he choose not to run for President. :)

    • wildrover4

      Given his popularity within the Republican Senate Caucus, I don’t think he would get confirmed with or without a filibuster.

      • therightmano

        Oh trust me, he will definitely be popular in the Senate of 2016 after we have replaced the bunch of traitorous RINO Senators.

        • icowrich

          The problem with replacing RINOs is that the Tea Party has mostly replaced them…with Democrats.

    • Larry Boston

      I am sure presidents
      McCain or Romney will appoint him.

  • http://teresainfortworth.wordpress.com/ Teresa in Fort Worth, TX

    Sauce for the goose, Mr. Leahy, sauce for the goose…..

    • wildrover4

      That is a meaningless threat. If Democrats were in the minority and took the position that a Republican President couldn’t have an up or down vote on a single nominee to an appellate court, Republicans would do away with the filibuster in a New York minute. That is why this entire discussion is so nonsensical.

      • JadedFan

        Democrats HAVE done it before. And in fact it was democrats who started the entire recent using political ideology to nix a candidate starting with Bork, but with many examples after.

        So now you are crying when what you brewed is coming back to bite you.

        What a joke.

        • wildrover4

          No one filibustered Bork. He couldn’t get confirmed on an up or down vote. The last time we were at this impasse, then Senator Frist said enough of this – we are going to employ the nuclear option. The Gang of 14 arrived and the agreement was that the filibuster would be employed only if a specific nominee displays exceptional circumstances. Obama was elected and the new standards is block all appellate court nominations. It is an unsustainable standard for obvious reasons. No party in the majority would tolerate it for very long. The Republicans wouldn’t last time and the Democrats won’t this time.

          • evangelical

            Because all of Obama’s appointments are constitution hating socialists

  • JadedFan

    Pleeeeeeeeeeeeease use the nuclear option.

    Obama and Reid have already shredded long recognized minority perogatives. Obamacare was passed in the middle of the night with only 51 votes, the ONLY time in our nation’s history when a major piece of legislation was passed that way, the ONLY time in our nation’s history when a major piece of legislation was passed without a single minority party’s vote. Even the judicial blocking was done by democrats first breaking centuries of tradition. Did you forget about Bork, one of the most qualified supreme court candidates ever nominated and torpedoed solely on political grounds by democrats?

    No party occupies the white house forever. Get used to executive orders reversing every single order Obama ever made when the white house switches, then going further. Get used to 51 vote passing of anything that the republicans want and treating democrats like they do not exist when the gavel passes.

    That is what democrats have, and are creating for the future.

    So go on, pass this ‘nuclear option’ if you want. But cut the damn whining when it is used against you and for policies and judges you do not agree with.

  • wireknob

    Wasn’t it the Dems who started holding up judicial nominees with filibusters during the G. W. Bush years?

  • wildrover4

    Here is what I don’t understand: How do Republicans think is going to end if not with the elimination of the judicial filibuster? Do they think that Democrats would simply say well we won the Presidency and a majority of the seats in the Senate, but NONE of the President’s appellate court nominees would receive and up or down vote? Would Republicans accept that outcome if the roles were reversed? I suspect that they want to run on the issue in 2014. There is no other explanation that makes sense.

    • evangelical

      It has been reversed…Bork…democrats would be getting what they desrved if their appointments were reasonable as Bork was…but their apointments are anti constitution and communist pieces of $hit. So its not even in kind….its necessary to block these apointments.

      • wildrover4

        When it was reversed last time Senator Frist scheduled a vote and the Gang of 14 materialized. They let Bushes’ nominees through. The left thought those nominees were every bit as radical as you believe Obama’s nominees to be. What I don’t understand is how you think the current strategy will result in these appointments getting blocked. It will result in the abandonment of the judicial filibuster. The appointments will go through. Same result but if a true “radical” is appointed, Republicans will be powerless to stop it. It is just like the government shutdown. There is only way it will end and it will be worse for Republicans.

        • evangelical

          Bush’s nominees that passed were still liberal pieces of $ hit. If you keeo trying this we conservatives will eventually just rebel and kill you all.

          • wildrover4

            Nice. I think you should put that on your campaign literature.

          • evangelical

            You think we’re joking but there are 30 million of us with guns.

            There is a reason why people like Mark Levin constantly preach that we can do it peacefully.

            When we realize we cant you expect us to just disappear? You piece of $hit

          • wildrover4

            You don’t scare anyone.

          • evangelical

            I bet the british felt the same in 1775…when George Washington writing in the Fairfax accords was preaching peace and reconcilliation.

  • AdmiralXizor

    Here’s Bat-S— Joe Biden on the prospect of the nuclear option in 2005:

    “(if the Democrats ever get the majority) I pray God we don’t make a naked power grab..”

    http://t.co/H9gcAzvrW2

  • victordesabata

    “they should at least be working with us to fill judicial emergencies that actually exist, rather than complaining about fake ones” – McConnell. What is he smoking? There are 3 vacancies on the D.C. Circuit……

  • AdmiralXizor

    Sen. Barack Obama (D – ILL) 4/25/05
    “He hasn’t gotten his way. And that is now prompting a change in the Senate rules that really, I think, would change the character of the Senate forever…
    and what I worry about is that you would essentially have two chambers. The House and the Senate but you have simply majoritarian absolute power on either side and that’s just not what the founders intended.”

    Sen. Joseph Biden (D – DE) 5/23/05
    “This nuclear option is ultimately an example of the arrogance of power. It is a fundamental power grab… I say to my friends on the Republican side, you may own the field right now, but you won’t own it forever. And I pray God when the Democrats take back control WE DON’T make the kind of naked power grab you are doing.”

    Sen. Harry Reid (D – NV) 5/18/05
    “Mr. President, the right to extend the debate is never more important, when one party controls Congress and the White House. In these cases, a filibuster serves as a check on power and preserves our limited government.

  • Stephen Barlow

    LMAO!!! @ Grassley!!!!

    ““The nominees we’d nominate and confirm with 51 votes will interpret the Constitution as it was written,” Grassley said. “They are not the type who would invent constitutional rights out of thin air.” …”There are a lot more Scalias and Thomases out there we’d love to put on the bench,” Grassley said, in reference to conservative Supreme Court justices Antonin Scalia and Clarence Thomas.

    As if ROBERTS and ALITO aren’t Party line skags, violating their Oaths to be impartial and set aside their political ties FOR LIFE….

    MONEY is FREE SPEECH? Why not BULLETS? Inanimate objects should NOT have Constitutional Rights!!!!

    “Judiciary ranking member Charles E. Grassley, R-Iowa, offered a floor speech Tuesday that was something of a prebuttal to statements issued by Merkley and New Mexico Democrat Tom Udall after the vote.

    “Many of those on other side who are clamoring for a rules change — and almost falling over themselves for it — have never served a single day in the minority. All I can say is this: be careful what you wish for,” the Iowa Republican said on the Senate floor. “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,” Grassley said, in reference to conservative Supreme Court justices Antonin Scalia and Clarence Thomas.

    Asked about Grassley’s comments, Leahy said that neither Scalia nor Thomas faced an actual filibuster.

  • marywnm

    A judge should not be part of any president’s team-they should serve fairly and uphold our constitution no matter who appoints them-Feinstein’s remark shows that she thinks a judge should be political-

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