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Reid Preparing to Move for Limits on Filibuster

November 20, 2013
The New York Times
Jeremy W. Peters

Senator Harry Reid, the majority leader, is prepared to move forward with a vote that could severely limit the minority party’s ability to filibuster presidential nominees, possibly as early as this week, Democrats said Tuesday.

Exasperated with the refusal of Senate Republicans to confirm many of President Obama’s nominees, Mr. Reid has been speaking individually with members of his caucus to gauge whether there is enough support to change filibuster rules.

Given how much deference senators have traditionally shown to the rules and procedures of the institution — many of them in place since the 18th century — any modifications are a serious undertaking.

But among Democrats there is a strong consensus that Republicans have gone too far in their latest attempt to block White House appointments, by denying Mr. Obama any more judges for what is considered the most important appeals court in the country despite three vacancies.

On Monday, they denied him his third pick in less than a month to the court, the United States Court of Appeals for the District of Columbia Circuit. If Mr. Reid determines he has the support, he could schedule a vote before Friday, an aide who has spoken with him directly said Tuesday.

“If the votes are there, we will probably do it this week,” the aide said, speaking anonymously to divulge internal plans. A second Democratic aide said Mr. Reid would go ahead once the Senate had wrapped up debate on a contentious proposal to combat sexual assault in the military.

Support has been building in the Democratic caucus to make the change, which would most likely affect federal judges and executive branch nominees like cabinet members. It would not affect the minority party’s right to filibuster Supreme Court nominees or legislation.

Mr. Reid, of Nevada, has picked up crucial support from some of his more reluctant members recently. Senator Patrick J. Leahy, Democrat of Vermont and the longest-serving member of the Senate today, who is chairman of the Judiciary Committee, has endorsed putting limits on the filibuster despite his history of being protective of Senate institutions.

The two senators from California, Dianne Feinstein and Barbara Boxer, said separately on Tuesday that they were leaning toward a rules change.

Their support was seen as crucial because they are both supportive of abortion rights and have been leery of making any changes that could prevent them from standing in the way of an anti-abortion judge.

“I’m for changing the rules,” Ms. Feinstein said emphatically, rejecting the argument that she and many other Democrats have made in the past that altering the nature of the filibuster could come back to haunt them.

“Republicans say: ‘Well, what goes around comes around. Wait until we’re in charge.’ I can’t wait until they’re in charge. The moment is now,” she added.

Ms. Feinstein made the same case to her colleagues in a closed-door lunch on Tuesday, where Democrats discussed whether they should move forward with a step so controversial it is called the nuclear option.

Separately on Tuesday, Ms. Boxer said she was “very open” to a change.

But holdouts within the Democratic caucus remain among those who are worried about a future in which they find themselves powerless to block nominees from a Republican White House. And Mr. Reid can only afford to lose a handful of his 55 members. To change the rules, he would need 51 votes.

Conceivably, if he could get 50, he could call on Vice President Joseph R. Biden Jr. — himself a protector of Senate traditions who recently indicated support for a filibuster change — to break the tie, but Democrats would rather avoid that possibility.

Asked Tuesday how many votes he thought he had, Mr. Reid said, “We’ll see.”

There are still many reasons a rules change might not go through, not the least of which is that Senate Democrats have gone down this road before only to pull back at the last minute. In July, Mr. Reid was threatening to end filibusters on nonjudicial appointments, but he relented after Republicans agreed to confirm several nominees they had held up.

Ms. Feinstein said Tuesday that she had hoped Republicans would show more flexibility after the compromise, but that had not been the case.

“We left with a very good feeling there would be a new day,” she said. “Well, the new day lasted maybe for a week.”

The stakes seem higher this time for many Democrats. Many of them strongly believe that if Mr. Obama is not able to appoint any judges to the court — Republicans have rejected four of the five nominees he has submitted — it will retain its conservative bent for decades. It is a crucially important court for any White House because it often decides cases that relate to administration or federal agency policies.

Republicans have proposed permanently removing the three seats that are now vacant, arguing that the president would stack an underworked court with judges to his ideological liking. But since that idea has no chance of becoming law, their backup plan has been to filibuster any nomination to the court that Mr. Obama sends to the Senate.

Gregory Wawro, a professor of political science at Columbia University who has studied use of the filibuster, said Republicans were on precarious ground.

“Without passing legislation, they’re basically trying to change what the structure of the judiciary looks like, and I think that sets a dangerous precedent,” he said.

“How far do you take this?” he added. “Do you not fill these positions because you think you can block a president until you get the White House back?”

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