MS. DIANE REHMThanks for joining us. I'm Diane Rehm. If Senate Republicans continue to block a vote on a number of Obama administration Cabinet picks, Senate Major Leader Harry Reid says he'll change the filibuster rules. This threat is considered so dramatic it's been dubbed the nuclear option. Senators met late last night in an attempt to find a compromise to Reid's plan, but still, no consensus.

MS. DIANE REHMJoining me to talk about the filibuster and political implications if Democrats decide to change the rules, Stan Brand, he's former counsel to the House of Representatives, James Thurber of American University and Manu Raju of Politico. But first, joining us by phone from Capitol Hill, Sen. Bernie Sanders, an Independent from Vermont. Good morning, Sir. And thank you for joining us. You say you are with Democratic Majority Leader Harry Reid 100 percent on this one. Tell us why.

SEN. BERNIE SANDERSWell, I think everybody recognizes, Diane, that our country faces enormous problems right now. We're looking at a middle class that is collapsing, the gap between the rich and the poor growing wider. We're not addressing the great planetary issue of global warming. Real unemployment is over 14 percent. So everybody sees these issues, and they're looking at the U.S. Senate, and they're saying, "What are you doing about it? What actions are you taking?"

SEN. BERNIE SANDERSAnd what people do not understand is that we're not having real debates on the real issues' impact in the American people because time after time after time the Republicans are using unprecedented obstructionist tactics. And here's the main point to be made. The Senate is a really weird institution in the sense that any one member, if I went to the floor right now and I objected, one senator could bring the United States Senate and hence the entire government to a halt.

SEN. BERNIE SANDERSSo you need some kind of unwritten agreement that that is not going to happen. Between 1917 and 1967, filibusters were used less than 50 times, fewer than 50 times. Since Harry Reid has been majority leader over the last six and a half years, he has had to have cloture votes to end filibusters well over 400 times. Our Republican friends say, "Well, you know, in the past, Democrats used to do it." And there's some truth to that. But what is the reality now is the Republicans have taken obstructionism and filibusters to an entirely new level...

REHMOK.

SANDERS...so that we are not debating or voting on the important issues facing the American people.

REHMI gather you would go even further than Sen. Reid is going where he wants to eliminate the filibusters as far as executive nominations are concerned.

SANDERSDiane, you're absolutely right. Well, what Reid is proposing is what I think the vast majority of the American people understand to be needed. I was a mayor of a city for eight years. To run a institution whether it's a city, a state, a governor or the United States of America, the federal government, the president, you need to have a team around you that works for you. What the Republicans have been doing is obstructing key appointments for the Department of Labor, for the Consumer Financial Protection Board, for the Environmental Protection Agency, for the National Labor Relations Board.

SANDERSAnd what Reid is simply saying, "Gives us a vote. If you don't wanna vote for these people, don't vote for them." So I certainly support Reid on that measure, but I do believe that we have got to further. I think the Republicans have broken the unwritten rule about obstructionism so that now any piece of legislation, any piece of legislation of any importance now requires 60 votes.

SANDERSWhat the American people don't know is that in the last several years the Senate actually has passed some fairly decent pieces of legislation which would create millions of jobs, do away with tax breaks for very large corporations, would have provided equal pay for equal work for women, would have kept student loans interest rates at a low rate.

SANDERSBut what has happened is once it's gotten 51 votes, 57 votes, we've got 59 votes for the Disclosed Act which says the people can't contribute hundreds of millions of dollars into politics and to campaigns without disclosure. We've got I believe 59 votes for that. It doesn't pass because we always need 60 votes.

REHMAll right.

SANDERSSo my view is we need to mark -- move to the concept of a talking filibuster. People can talk as much as they want, but at the end of the day, 51 votes passes.

REHMOkay. But to what extent are you worried that if Republicans take control, that they're going to turn tables on you.

SANDERSThat is a very fair question. But this is what I believe. I happen to believe that the views that I represent trying to protect the interest of working families, the middle class, women's rights, the environment, et cetera, in fact, reflect not what everybody in America supports, I understand that, but what the majority of the people of my state and my country believe. And I'm prepared to go to the floor and say I wanna raise the minimum wage. If you disagree with me, you fight it out. Fifty-one votes wins.

SANDERSNow, I understand that on some votes, I will lose, and I understand that if the Republicans get the majority, their life will be easier. But here's the problem now. The American people are so frustrated they don't even see real debate and real votes. What they see is obstructionism. Fifty -- with 51 votes, it is true. Sometimes, you're going to lose and be disappointed.

REHMSure.

SANDERSSometimes, you're going to win, but at least, the American people have a sense of the clash of ideas and what's going on.

REHMSo is there any chance that at -- as the Senate convenes this morning, there will be someway to compromise?

SANDERSThe answer is that as we, you and I, chat right now I'm looking at a screen which says there's a quorum call which probably means the people are negotiating the issue right now. But I happen to believe that we should go forward unless, you know, the Republicans finally acknowledge that they just cannot block presidential appointments.

REHMSo do you believe that Majority Leader Reid will go through with his threat?

SANDERSWell, I tell you, Diane, rather than speculating, I think in an about an hour, you will know the answer to that.

REHMI hope you'll call us and let us know. Senator, thank you so much for joining us this morning. Bernie Sanders, he's an Independent from Vermont. Thank you again.

SANDERSThank you very much.

REHMAnd turning to you now, Manu Raju, bring us up to speed, what happened last night at this closed-door meeting.

MR. MANU RAJUIt was very usual. Rarely, do senators from both parties sit behind closed doors and talk together. In fact, they usually they have lunch in separate rooms of Democrats and Republicans do. But last night, almost all 100 senators were in the old Senate chamber, the institution that -- the building that was, you know, the floor where they cut the Missouri compromise and other major deals from the past. But this was not a negotiating session last night. This was more of an air-clearing session, maybe a group therapy session.

REHMDid they clear any air?

RAJUWell, they talked. But everyone came out of there saying it was very productive and collegial...

REHMYeah. Right.

RAJU...and we talked about, you know, about what our concerns were. But at the end of day, Diane, this all comes under two men, Harry Reid and Mitch McConnell. The rest of the Senate -- senators, they're not nearly as important as the two leaders are in figuring out if there's a way forward on the executive branch nominees that are stalled.

RAJUIf Mitch McConnell does not give Harry Reid the votes on Richard Cordray to head the Consumer Financial Protection Bureau and two nominees before pending further National Labor Relations Board, then Harry Reid is threatening to go forward with the so-called nuclear option to change the filibuster rules by 51 votes. They're still negotiating right now. I think we'll know the answer actually later today, not in an hour like the senator said.

REHMJames Thurber, you talked with Sen. Reid. What did he say?

PROF. JAMES THURBERWell, he has a very credible threat that he will do this rule change, and I think that's how you go into a negotiation. When pushed in the meeting that I had with him, he didn't say explicitly that he would do it. He would shift back to what the Republicans are doing, and that is filibustering executive branch nominees. Now, that's not the norm historically. As you know or maybe you don't know, between Eisenhower and Ford, there were no filibusters on executive...

REHMNone.

THURBERNone on executive branch nominees.

REHMRight.

THURBERIn the last 20 -- in the last 32 years, there were 20 and 16 under Obama. It's really breaking the norms to have filibusters on this. And for the first time ever, historically, we had a filibuster on a defense secretary, Hagel, and we had a filibuster on the head of the CIA. Now, the filibusters that have gone on afterwards frequently the votes are 96, 97, one time 100 votes for the nominee, plus there are other delaying topics that have brought Harry Reid to where he is right now.

THURBERThe person nominated for the EPA had 1,100 questions, the secretary of labor, 400 questions and holds and delays and delays. He argues, I agree with him that when a president is elected, he has a majority vote, he has the right to send his nominees forward and to have expeditious consideration of them.

REHMStan Brand, how did we get to this place?

PROF. STAN BRANDWe got here through, I guess, the continuing divide between the parties and the partisan rancor that has characterized the last at least 12 years. You know, the Constitution provides the Senate with authority to make its rules and in a parliamentary way. It's majority rule with minority rights. This has always been respected, but it's broken down over the last several decades.

REHMStan Brand, he's partner with the Brand Law Group, former counsel to the House of Representatives. Short break here. When we come back, we'll talk further about what's going on up on the Hill and what's not happening that should be. Stay with us.

REHMAnd joining us now is Republican strategist Craig Shirley. He is a Reagan historian. He's also the author of the new book "December 1941: 31 Days that Changed America and Saved the World." Good morning to you, sir. Thanks for joining us.

MR. CRAIG SHIRLEYThank you, Diane.

REHMGive us your reaction to Sen. Reid moving forward with the nuclear option.

SHIRLEYYeah. I think it's almost inevitable if you look at the fight that's been going on ever since Trent Lott and then later Sen. Bill Frist invoked and came up with the whole notion of the nuclear option. Ironically, the origins of the opinion come from Richard Nixon in 1957 when he was the presiding officer at the Senate that the presiding officer could disregard rules or precedence. So that's where it all comes from. But I think that eventually you're going to see Sen. Reid move ahead with it.

REHMBut what about Sen. Reid's point that the Senate is broken, that the filibuster is actually being abused?

SHIRLEYWell, I think -- actually, I think he does have a fair point. You know, we've gotten away from the whole discussion about the qualifications of the nominees. And, really, that's what governance should be about. It doesn't really matter whether or not the Republicans don't like the politics or the ideology of the nominees or -- in the case of when President Bush was in office -- whether or not the Democrats didn't like the qualifications of his nominees or the politics.

SHIRLEYThe only matter is that, are these people qualified to hold that office? And, really, that's how the American people view it, and that's why they're becoming so increasingly dismayed and disgusted with Washington.

REHMSo what do you think could happen if Sen. Reid moves forward?

SHIRLEY(laugh) There's going to be a lot of screaming and yelling. But it'll eventually subside, and they will disregard the nuclear option, or they'll move ahead with it and then go back to the way the Senate, you know, was originally constructed by the founders.

REHMSo you think that once this goes through, people will begin to behave differently?

SHIRLEYI don't know if they're going to behave differently, Diane. But I don't see any other option, quite honestly, is that -- let me just say, there is somewhat of a mythology that Washington is now dysfunctional or broken or the two parties are at each other's throats. The two parties have always been at each other's throats. The only time they really come together is when their -- it's in their mutual interest to come together.

SHIRLEYWhen I think of the '86 Tax Reform Act between Tip O'Neill and Ronald Reagan, it was in their -- both their parties' best interest to do those things. When FDR asked for a declaration of war on Dec. 8, it was in the best interest of both parties because it happened to be in the best interest of the country to declare war in Japan. But in most of the cases, the parties disagree because they have two different views of the world and two different ideologies.

REHMAnd you think this is part of democratic ideology?

SHIRLEYI think that it's part of the governing process is that the American people look at this and as much as they disagree with Washington, they still like the idea that their tax dollars are going to a government that's at least attempting to work.

REHMAnd what about the rights of a president to have the people he puts forward by his side?

SHIRLEYWell, I think that, again, you know, as I said before is that -- I mean, the original role of the Senate was to advise and consent of his nominees, and it really does -- should be about -- only about the qualifications of the individual and not the ideology to serve, as they say, at the pleasure of the president.

REHMCraig Shirley, Republican strategist, author of a new book titled "December 1941." Thanks for joining us.

SHIRLEYThank you.

REHMAnd, Stan Brand, it would seem that Craig Shirley seems a little milder about this than I might have expected.

BRANDWell, it reminds me of the famous John Tower nomination where the Democrats didn't filibuster him but made a big to-do about his qualifications for office. And I remember talking to Democrats at the time and saying, look, you have to be careful about obstructing a president's choice. If you have an issue about his fitness to serve or his qualifications, by all means, have at it.

BRANDBut if you're really just upset about his choice because you don't like him or you don't like the agency, then I think you owe the president the -- of any party, the right to have who he wants in his cabinet.

REHMIs that what's happening here, James Thurber, that the qualifications of none of these nominees have really had a close look, or is it that those senators voting against don't want those people?

THURBERWell, I think that there's some consensus that the qualifications of these people are very good. Some of them are aligned with the Republican Party. They had distinguished careers. There's no controversy in terms of any ethics or other things. I think what this is about, it's not about qualifications. It's about policy. It's about scope of government. It's about people being against it, NLRB against the EPA promulgating rules and regulations for coal-fired plants.

THURBERIt's about labor being shrunk in terms of its power. And that's -- they're using the filibuster on executive appointments to try to make a point to the base of the far right of the Republican Party that they're going to shrink government. And so they don't have an argument when they say the qualifications of these people are not good. They're just delaying, delaying, delaying. And there will be, in my opinion, a slippery slope. I think this is a very serious thing.

THURBERI think that if this is passed -- and I lean towards passing it because Congress has to get something done, so it has to get something done. They've got to work. But if they do it, there's likely to be a cycle of retribution. When the Republicans -- if the Republicans get in the majority and -- they may then go to judicial appointments then to legislation, generally. And that's the worry.

REHMAnd, Manu, Sen. Reid said this is no big deal. How do you see it?

RAJUWell, Republicans will say it's an extremely big deal for exactly the reasons that James said, I mean, once this so-called nuclear option is invoked. The reason why it's significant is because it would allow the majority party to change the rules by 51 votes rather than 67 votes. And while the 67-vote threshold is there, is it encourages -- or it requires the one person who wants to change the rules to get a broad bipartisan majority.

RAJUAnd if they start a precedent in which they could change rules by 51 votes, that means a partisan majority can change rules by 51 votes. And if Reid does this now on executive branch nominees, Republicans say, look we can do the same thing. Change the rules by 51 votes to get rid of the filibuster on judicial nominees, on legislation. And so what does that mean for Obamacare? What does that mean for the next Supreme Court justice?

RAJUThese have major implications for the country, and that's what Republicans are wanting right now. And that's why a lot of Democrats have paused, too, about whether they actually wanna go forward with this stuff.

REHMStan.

BRANDI'd say -- and Sen. Sanders, who I have utmost respect for, blithely says, well, all we want is an up or down vote. You wouldn't believe the howls that will come out of the Capitol if the Republicans take over in 2014 and they begin ramming through repeal of Obamacare, repeal of the Voting Rights Act, on and on and on. And the...

REHMSo you think it's a bad idea.

BRANDAnd the Democrats are powerless to stop them. I think it's a terrible idea...

REHMYou think it's a terrible idea.

BRAND...because you live by the sword and you die by the sword.

REHMAnd, Jim Thurber, you think on balance.

THURBERYou know, I'm conflicted. And I think that -- I think the majority leader is conflicted too. You could see that he talked about how Sen. Byrd treated him very well, brought him along and he was institutionalist. And Byrd -- and Reid is an institutionalist, meaning they want to keep the institution working in a way it was intended. But we also have many votes that are 51 votes on reconciliation, on trade, the so-called Byrd rule.

THURBERByrd changed the rules four times to make sure the institution would work. He pointed this out to Sen. Reid, and he said yes. And in order to make it work, we have to make this change.

BRANDAnd there's an alternative, which Sen. Sanders referred to, what I call the cut rule, and that's to go back to the Jimmy Stewart movie version and say, OK, if you want a filibuster, bring in the cuts and take the public opprobrium in heat from tying up the Senate for 25 hours reading the phonebook. At that point, some amount of reaction will cause people to be more sagacious about their choice of when to filibuster and when not. That is ultimately the weapon against arbitrary use of the filibuster.

THURBERAnd I agree with the standing filibuster. It's called a standing filibuster, and the freshmen want that. I think that's very reasonable.

REHMGive us a little history on how the filibuster actually came about, Jim.

THURBERWell, it goes way back. Most people say that it's at the founding. It wasn't at the founding. In the '20s it started. It wasn't used very often. It was used to pass legislation rather than to stop legislation. It's being used to stop legislation now. And during the civil rights period, Strom Thurmond set a record of over 24 hours on the floor standing there, giving a filibuster. Before that, Wayne Morse did it with respect to a railroad bill.

THURBERThis filibuster -- I actually was working in the Senate for the so-called Senate Committee on Committees. Don't laugh. There is such a -- there was such a thing. And they changed the filibuster, the cloture rule, to cut off the filibuster from 67 to 60, and that took 15 years in negotiation to get to that stage. So this is -- this has been around. This threat has been around for a while, but I think maybe we need to go a little further before we pull the trigger.

REHMManu.

RAJUYeah. And, you know, today, what the -- how the filibuster happens is that people don't actually go down and talk. They actually just threaten it, and just the basic threat of the filibuster is what leads to this process, this cloture process, which takes several days to overcome and 60 votes to overcome.

RAJUAnd Republicans would say that, look, you know, the reason why Reid has to go through this is Reid has done what -- more than something that -- more than any other majority leader has done, which is to limit the Republicans' ability to offer amendments on the floor, a process in the Senate that's known as filling the amendment tree. And by doing that, that has caused Republicans to retaliate in such a way that they would see they're threatening filibusters on even the most routine business.

REHMYou also...

RAJUSo this is on both sides of the aisle where these procedural rules are being used.

REHMYou also have Minority Leader McConnell saying that the Senate has confirmed every single one of the cabinet nominees brought up before a vote.

RAJUThat is absolutely their argument, and we would say that, look, you know, the reason why -- you know, even though we're confirming them, we're waiting so long before they can get a final confirmation vote even if there's no objection to their qualifications. And so there is talk among Reid and McConnell about limiting the amount of time for executive branch nominees. We'll see if that is actually a middle ground when they negotiate something today.

REHMAnd you're listening to "The Diane Rehm Show." McConnell also says the president has gotten three times as many judges confirmed compared to this point in President Bush's second term, Jim.

THURBERThat's true. But, you know, middle ground, back to this last point, is to agree on what the regular order is. Now, that's an inside term in Washington, D.C. American people don't care about that. But...

REHMBut they do. I think more and more care about what's happening here.

THURBEROh, they do. They're at 10 percent in the polls, and it's because they're not getting anything done. You watch C-SPAN. Nothing gets done. They're wasting time. There's gridlock, extreme partisanship. But the middle ground is to have the leaders agree on what the regular order is -- and we're getting to it slightly there -- and that is limit the amount of time, limit the number of questions, limit the holds and send this forward in a reasonable amount of time. Now, if they can get there, maybe Reid will back off, not do this, and they'll go forward. But that only stands as long as this Congress.

REHMBut couldn't Mitch McConnell and others promise to move forward and then have it again sort of drawn-out long and steady?

THURBERThere's a very strong norm on the Hill, and that is you don't lie. And you -- when you tell somebody you're going to do something, you do it, and you don't -- if you have to change your mind, you explain it. Now, there's a lot of accusation by Reid that McConnell's backed off on a lot of agreements. And so he's pretty angry about this, and it's one of the reasons he's going forward.

REHMStan Brand, how different does the Senate operate today from what it did 15 years ago?

BRANDWell, but for this type of conflict, I don't think much differently. I mean, they were able to produce an immigration bill, a fairly controversial topic, and that was because, again -- and I think that's an exhibit to why this rule is a bad idea -- when the public consensus gets to a point of forcing the Senate to act, they have been able to act in limited circumstances.

BRANDWhat I would regret seeing is turning them into a House of Representatives, a look-alike body where a simple majority just runs things through without the type of tempering and discussion that goes on even in today's Senate as it did in the immigration bill.

RAJUAnd I would -- if I could add, I'm sorry…

REHMSure.

RAJU...one of the things that's also different about today's Senate is that it's a much more junior Senate. I mean, you don't have some of those fierce institutionalists like Robert Byrd, who really defended the rules of the Senate.

RAJUAnd now you're seeing in the Senate Democratic caucus that there's a majority of those 54 members -- actually, 50 -- yeah, 54 members -- who are -- have not actually served in the minority, and they have been frustrated by what they see as the minority's abuse of the rules. That is a -- that has been a shift in the membership, and that's what -- actually what is a large part of what's driving Harry Reid today.

REHMAnd finally, before we take a break, is it true that lawmakers never before have blocked a nominee because they didn't like the work of that agency?

THURBERWell, that's a good question. I feel that that has not been the case in the past, and I feel -- by the way, I disagree with Stan. I think the Senate has changed because it's no longer as clubby as it used to be, and people go home on the weekends. They have the Tuesday, Thursday club. They don't know each other. And 50 percent of them come from the House, and they bring the norms -- with due respect to the other body -- they bring the norms of the House.

THURBERAnd then the House, they wanna get things done, and they're used to majority rule, and they're pushing this. And this comes from the people primarily on the far right, the minority of the minority in the Republican Party.

REHMSo -- but how about my question, Manu?

RAJUI mean, Democrats will say this has never been the case, that this is something that Republicans have taken to new lengths, like by preventing Richard Cordray to get confirmed to the CFPB, the Consumer Financial Protection Bureau, because they don't like the agency. They have no concerns...

REHMOr the EPA.

RAJURight. That's -- but, you know, senators have all sorts of motivations for holding up nominations.

REHMManu Raju, he's senior congressional reporter at Politico. When we come back, it's your turn to weigh in. I look forward to speaking with you.

REHMAnd The Washington Post is now reporting that senators have reached a tentative deal on averting the constitutional showdown over confirming President Obama's agency nominations. Quoting Harry Reid, "We may have a way forward on this, I feel fairly confident." Sen. John McCain signaled enough Republicans would support breaking a filibuster on the first test vote on the showdown for Obama's pick to lead the Consumer Protection Financial Bureau. Sen. Reid is quoted as saying, "I think everyone will be happy."

REHMAnd there is an 11 a.m. cloture vote on a motion to proceed to the nomination of Richard Cordray to head the CFPB. How does that change the picture, Stan?

BRANDI mean, that's nice for now. This issue will come up again. It will come up on the next set of nominees. The question will come on judicial appointments. This isn't going away. This is just a step back from the brink. It's like the old Soviet Union and the United States over nuclear weapons.

REHMSo now you sound as though you're changing your position.

BRANDNo. I'm just reflecting what I think the reality is politically.

REHMOK. Jim.

THURBERThere are seven nominees that are -- pardon me -- under consideration. And when they get to the two nominees for the National Labor Relations Board, that will be a test for Harry Reid. He's being pressed by outside forces, by labor to make sure that you can go ahead on these, and the Republicans are saying it's, you know, it's illegal to appoint and it's unconstitutional to appoint them at this point. And that will be the confrontation later in the day, in my opinion.

REHMManu.

RAJUYeah. The Republicans have been pushing for those two NLRB nominees to be replaced by two new nominees. And that was something both the White House...

REHMWhy?

RAJUBecause those two nominees were appointed by President Obama in a recess appointment last January of 2012 when the Senate was in a pro forma session at the time. The Republicans howled -- cried foul and said that this was unconstitutional use of his recess appointment authority. And that is what is now before the Supreme Court litigating this matter.

RAJUSo the concern among the labor unions is that if you put in two new NLRB nominees and the Supreme Court ends up saying that these were unconstitutionally appointed, then all these decisions that the NLRB made could essentially fall by the wayside. So there's a big push by labor to get those NLRB nominees through.

REHMAll right. Let's open the phones. First to Sarasota, Fla. Hi there, Elliott.

ELLIOTTHi. Thank you for the call.

REHMSure.

ELLIOTTI would like to have the media discuss the fact that they constantly refer to Washington gridlock. And the public gets a sense that nobody is working in Washington. But the truth is that the Republicans declared quite openly many times that their only goal is to stop Obama's agenda, so they have pledged to deny any possible legislation that he might put through. And they repeated it over and over again.

ELLIOTTI think that this -- the media is misleading the public in thinking that the entire structure in Washington is not working. But it's not working simply because the Republican Party has declared quite openly and on the floor of the Senate that they wanted to make Obama a one-time president.

REHMAll right. Manu.

RAJUI mean, look, we have a divided government. I mean, there's a Republican House. There's a Democratic Senate. There's a Democratic White House. There needs to be a consensus in order to get legislation through, one party cannot rule under that regime. And in the Senate, it's narrowly divided. You need to have consensus to get anything through. So if there is none, there's often plenty of blame to spread around.

REHMLet's go to Indianapolis. Hi there, John.

JOHNGood morning, everybody.

REHMMorning.

JOHNIt's a privilege to speak to you. You're an absolute role model for civilian decorum. Thank you.

REHMThank you. Thank you.

JOHNI have a question regarding the presentation of the filibuster in the media. You know, reading things like The New York Times -- I've even noticed this with some of the more right-leaning publications like the National Review -- they don't talk about the filibuster. They talk about a quote-unquote "procedural vote." And we're talking about the American people not understanding what's actually going on.

JOHNIf we're talking about alleged Republican use of the filibuster or alleged abuse of the filibuster, if we're only -- if we're talking about procedural votes and not the filibuster per se, does that not make the media, in part, complicit with that misunderstanding?

REHMInteresting. Jim.

THURBERI think the media is doing a great job of explaining very complex things, especially Politico. (laugh) You know, The New York Times and The Washington Post follow Politico.

RAJUOf course.

REHMThat's why Manu is here.

THURBERNo. I've read all of these articles, and I know this pretty well, and I'm very pleased actually in the way they've described it. They made it clear to the American public that a requirement for a supermajority for these executive appointees is what it's about if you have a filibuster, and they feel that it should be just the majority vote, and they've made it clear. And they've taken stance in the editorials as you know in The New York Times today.

REHMHere's an interesting email from Ricardo, who says, "I've heard about the nuclear options Sen. Reid is considering. My question is, can Reid reverse this action ahead of any shift in minority or majority?"

BRANDWell, the Senate majority can put in whatever rules they want. So presumably, he -- as long as he's the majority leader would have that option right up and to including switch over in control.

REHMAll right. To St. Louis, Mo. Hi, Mary.

MARYHi, Diane. It's a pleasure to speak with you.

REHMThank you.

MARYI just wanted to say that it just seems like with 16 filibusters since President Obama has been president, that just seems like an abuse in power. And I just can't help but think that it's because he's black. And I'm married to a white -- I'm a black woman married to a white man. I know that not all Caucasians and -- or anybody who must be a racist against black people. I'm not like that, but I just can't think -- help thinking this.

REHMWhat about that, Jim Thurber?

THURBERWell, let's put a fact out that when LBJ was majority leader for six years, he had one filibuster. Reid, in seven years, has had 421 filibusters. So it shows the difference of what's going on. But back to the question of race, yes, there's racism in America, but I don't think it's as bad as it was 10 years ago. I think this confrontation is about scope of government and policy. You've got some people on the far right that want to shrink government, and this president was phenomenally successful.

THURBERHe had a 96 percent presidential score when -- in getting things done when he came in, 234 loss. It's not only Obamacare and Dodd-Frank and a lot of other things. It was Lilly Ledbetter. There's a whole lot of things that the people that are conservative from the Tea Party movement don't like, and that's what this is about. He happens to be black. He happens to be very effective also, especially the first two years, but in divided party government, he's dropped into the 20s. And so it's very hard to get anything done.

REHMStan.

BRANDI think we're headed here regardless of who got elected as long as he was a Democrat. I don't think Hillary Clinton would've been in any better position vis-à-vis this issue than President Obama.

REHMSo you think that this kind of division, this kind of confrontation, this kind of lack of cooperation is going to continue? Why? Is it because of gerrymandering? Is it because not enough people vote? What's it all about?

BRANDIt's all of the above. It's the continuous fracturing of American civil discourse and political discourse. It's the weakening of the parties. More people are -- identified themselves as Independents or not Democrats or Republicans. It's the social media. It's all of these, which has drained the discipline and the accountability in some sense from the political institutions to the grassroots.

BRANDAnd as long as that occurs -- I mean, look what happened in the Republican Party in the last election where they nominated people from outside the mainstream and replaced senators like Sen. Bennett of Utah, Sen. Lugar of Indiana. It's a new day and a new world, and those forces are on loose and they create hyper-partisanship and hyper-confrontation.

REHMAll right. To Cincinnati, Ohio. Edward, you're on the air.

EDWARDHello. Diane, can you hear me?

REHMSure can.

EDWARDThank you for taking up this issue. One of your guests defined the institutional position as allowing the Senate to work the way it was intended, but it was never intended to work this way. When the Founding Fathers established the Senate, they wanted it to cool the passions of the more representative body. And they did it by giving senators longer terms, a higher age requirement -- you've got to be 30 years old.

EDWARDThey made it a smaller body, and they made the principle of representation by states rather than proportional by population. All those things are intended as checks on the passions of the more representative body. We do not need an additional check of the filibuster. And Harry Reid gets up -- I'm sorry. Mitch McConnell gets up and issues these oracular pronouncement about abusing the history of the Senate, but he's defending practices that are only 30 or 40 years old.

REHMJim Thurber.

THURBERWell, the Constitution addresses this, and it calls for supermajorities in the Constitution for impeachment and treaties and majority vote for appointments. And so he has -- it's not unconstitutional to have 60 votes for these people because of a filibuster, but he has the Constitution on his side. I think the idea that Senate cools the hot ire of the House of Representatives is certainly a thing that it does, and it certainly has with respect to this House of Representatives.

THURBERThey would have thrown out Obamacare and they keep stopping it. They would have thrown out Dodd-Frank. They keep stopping it. They would have had a very different immigration bill, and that's going to come together. So he -- he's right that it is an institution that moderates the House that goes for the right and for the left sometimes.

REHMManu.

RAJUYeah. And the caller speaks of the concern that the senators have in trying to move forward with this so-called nuclear option, is that once they do this, do we start a path in which we change -- fundamentally change the nature of the Senate so it would look a lot like the House, where the leadership can presumably do whatever it wants just with votes from its own party. That is the concern, and that's why, you know, it looks like Harry Reid may have a deal to head this off.

REHMAnd you're listening to "The Diane Rehm Show." To Houston, Texas. Colin, you're on the air.

COLINHi, Diane. Thank you for taking my call.

REHMHi. Thank you.

COLINI wanted to make a comment about the litigation that's going forward the Supreme Court regarding the NLRB and CFPB nominations. My understanding is that if those nominees are confirmed then the government lawyers could file a motion in front of the Supreme Court saying that this case is now moot and therefore should be dismissed.

COLINAnd then we would never get an answer from the Supreme Court as to whether these pro forma sessions really do negate the president's recess appointment power, which is an important question.

REHMStan Brand.

BRANDNo, I don't think this case can be mooted that way. This case involves the legal authority of the president to have appointed these people in the way he has. And that's the broad question presented which the Supreme Court has accepted. Now, the Supreme Court can always duck a answer after they've heard argument and read the briefs and decided that they -- somebody doesn't have standing or somebody doesn't have a justiciable right. But my guess is this is headed for some type of resolution at the Supreme Court.

REHMHere's an email from Travis, who says, "Isn't this the exact same argument Democrats were making during President Bush's second term?" "It seems to me," he says, "the same obstructionist tactics with different actors. Wouldn't the Democrats do the exact same thing with a Republican president?" Manu.

RAJUI mean, you know, when you go back to 2005, it was completely opposite. Harry Reid was in the minority, Mitch McConnell was in the majority, and they were arguing over whether or not to confirm President Bush's -- George -- judicial nominees. And that, you know, and they were making completely opposite arguments at that time. So, yes, I think, you know, when the parties flip power, you're going to see the arguments change because when the shoe is on the other foot, you'll see that happen.

REHMAnd -- go ahead, Jim.

THURBERWell, Mr. Reid addressed this yesterday in a meeting that I had with him, and he said judicial appointments are very different, that he is not for giving up the filibuster on life-term appointments.

REHMWhy not?

THURBERWhy not?

REHMWhy not?

THURBERBecause it's a life-term appointment, and he thinks it's very serious. It's not something like an appointment to the secretary of labor, where if something happens they can get rid of him more easily.

REHMAnd a final email from Roger. "Why is it not unconstitutional for the Senate to refuse to vote on appointments that are charged -- that they are charged with either approving or not, and if they refuse, does not silence -- imply consent?"

BRANDWell, the problem in our system of separated powers is no one can get these things decided in a court. These are not justiciable issues. These are political issues, and they're to be resolved within the confines of the political system. Somebody brought a lawsuit on the filibuster just last year, and it was thrown out because people said we're not going to tell the court -- the courts aren't going to tell the Congress how to operate.

REHMAll right. So once again, let's remind our listeners that Sen. Reid has scheduled an 11 a.m. cloture vote on a motion to proceed to the nomination of Richard Cordray to head the CFPB. If that nomination is approved, Jim, what is that going to mean for this whole argument? Is it going to continue or not?

THURBERThat's the first test. Then they'll go through six other nominees. And if there becomes a problem, especially as I said before with the NLRB appointees, then this may pull -- create a situation where he pulls the trigger and changes the rules.

REHMJames Thurber of American University, Stan Brand, former counsel to the House of Representatives, Manu Raju of Politico. Thank you all so much.

THURBERThank you.

RAJUThank you.

REHMAnd thanks for joining us. I'm Diane Rehm.