The new normal is that 41 senators can no longer scuttle non-Supreme Court nominations. Democrats have since confirmed several top presidential appointees and three judges to the powerful D.C. Circuit Court of Appeals without having to negotiate with Republicans. But the Senate minority retains the ability to force time delays before judicial nominees can receive votes, and it has been using that power to significant effect.
"It's a huge deal that Democrats changed the filibuster rule and it creates a lot of new possibilities," said Michelle Schwartz, director of justice programs at the American Alliance For Justice, one of the leaders of the Fix The Senate Now coalition. "But there is more to be done."
On Wednesday, Reid sought consent to immediately vote on four district court nominees. Senate Minority Whip John Cornyn (R-TX) objected on behalf of Republicans, forcing Reid to set up a lengthy confirmation process that could delay their confirmation by days or weeks, even though the GOP cannot ultimately block them.
Cornyn's message to Reid? Undo your rules change from last November or we'll get our revenge by forcing these delays. "My hope would be that the majority leader would choose to reverse the partisan rules change," he said, "so that we can go back to the bipartisan cooperative process that resulted in more than 200 Obama judges being confirmed."
Currently there are 136 executive and judicial nominees pending on the Senate floor. Without consent, Reid has to file cloture for the nominees and wait an intervening day before voting to proceed to debate. A minority can guarantee up to two hours of debate for district court nominees, 30 hours for circuit court nominees and eight hours for sub-cabinet nominees. It would eat up months of Senate time to go through that process for each of the nominees, as Republicans are threatening to do.
"In the face of a three-year high in judicial vacancies and a twenty-two-year high in judicial nominees, Senate Democratic leaders must take swift action to drive these numbers downwards," the leaders of Fix The Senate Now said in a statement. "We strongly urge Majority Leader Reid and Chairman Leahy to consider reforms to floor and committee rules that will hasten the confirmation of President Obama's talented and qualified set of nominees."
The liberal coalition wants to shorten the mandatory debate time for these nominees once cloture has been invoked. It has also championed a proposal by Sens. Jeff Merkley (D-OR) and Tom Udall (D-NM), is to require obstructing senators to hold the floor and speak if they don't want to cut off debate. The coalition additionally wants to unwind the so-called "blue slip" procedure, which is at Leahy's discretion, that lets senators prevent committee action on judicial nominees to their home states. Liberals say it has been abused, citing examples such as Sens. Marco Rubio (R-FL) and Richard Burr (R-NC) using that tool to block judges they themselves recommended.
Democratic aides say further rules changes are not imminent but are very much on the table. They're less likely when it comes to legislation, despite repeated filibusters of unemployment compensation, a high Democratic priority. The decision will be Harry Reid's to make, and would likely require the use of the nuclear option to change the rules with a simple majority, as opposed to the two-thirds of senators traditionally required. The upcoming November elections, where control of the Senate is up for grabs, may motivate Democrats to focus on other matters. But after the tepid public response to the filibuster reform last November, taking action isn't viewed as a serious risk on the merits because voters don't appear to care much about procedure.
"We see this as a big opportunity to keep getting more and better people on the bench," said Schwartz. "Unfortunately people are using these tools just to obstruct, and if that obstruction continues to go on then we'll have to look at the rules again."