For nearly 200 years the U.S. Supreme Court was made up of men. Then came Sandra Day O’Connor.
The Senate approved the most fundamental change to its filibuster rules in more than a generation. Diane and her guests discuss what the new “majority rules” mean for presidential nominees and legislation moving forward.
- Harry Reid U.S. Senator (D-Nevada) and Senate majority leader.
- Jonathan Weisman Congressional reporter, The New York Times.
- Norman Ornstein Resident scholar, American Enterprise Institute; co-author of "It's Even Worse Than It Looks."
- Stephen Dinan Congressional bureau chief, The Washington Times.
- Olympia Snowe Former U.S. Senator (R-Maine).
MS. DIANE REHMThanks for joining us. I'm Diane Rehm. The Senate approved the most fundamental change to its filibuster rules in more than a generation. Joining me here in the studio to talk about what the new majority rules mean for presidential nominees and legislation moving forward: Jonathan Weisman of the New York Times, Norman Ornstein of the American Enterprise Institute, and Stephan Dinan with The Washington Times. But first, joining us from his Nevada congressional office is Harry Reid, Senate majority leader. And thank you so for joining us, Senator, at such an early hour.
SEN. HARRY REIDYou're right about everything you've said so far, except I'm in my home in Searchlight, Nev., not at my congressional office.
REHMOkay. Well, that's just fine. Before we talk about the filibuster rule, Senator, I wonder about your thoughts on the nuclear deal with Iran. You were committed to moving ahead with tougher sanctions last week. How do you feel about this now?
REIDNo. What I said last week I still feel the same way today. Dianne Feinstein, for example, put out a strong statement today. She's chair of the intelligence committee. She supports the arrangement made by the president and his team, including, of course, John Kerry. Sen. McCain was cautiously optimistic. And the way that I feel about it today is the same way I felt about it last week.
REIDI said, when we come back, we'll take a look at this to see if we need stronger sanctions. And that's why I'm going to look at Tim Johnson, chairman of the banking committee, which has jurisdiction of this, and Bob Menendez, chairman of the foreign relations committee, and they will do what they're supposed to do. They'll study this.
REIDThey will hold hearings, if necessary, and if we need more work on this, we need to do stronger sanctions. I'm sure we will do that. And so I look forward to input from both the majority and minority when I get back there, and we'll move forward appropriately.
REHMExplain the rules to me. If, in fact, the Senate were to vote for tougher sanctions, could the president veto those?
REIDOf course, yes.
REHMAll right. And tell me about Israel's concerns for the deal. Prime Minister Benjamin Netanyahu called the deal an historic mistake.
REIDWell, for us over here, thousands of miles away from the problem, that is the nuclear reactor in Iraq -- not Iraq, but O-raq and the other work that Iran has done, I think that if I were the leader of that country, I'd be concerned, too. I'm concerned, too. I'm concerned thousands of miles away. You can imagine how he must feel being a few miles away.
REIDSo I understand. I've spoken to him about this -- he, meaning, Prime Minister Netanyahu. Of course, they're concerned, and that's why I've indicated that we'll took a look at this when we get back, all aspects of it. But we all have to acknowledge that it's an important first step. Is a first step good enough? We'll take a look at that.
REIDBut at least, for the first time in some 37 years, United States, the European community, plus China, Russia, France, Great Britain, we're all able to talk to Iran for the first time, as I said, in 37 years. So it's an important first step. If it's a good enough first step, we'll take a look at that.
REHMAnd now on to the filibuster. You've resisted using that nuclear option in the past. Why did you change your mind now?
REIDWell, I've been in the Senate for quite some time. I have obligations to try to run the Senate, and I've tried to do that. For the past two Congresses, I've done everything I can to avoid changing the rules dramatically. But, frankly, the steps that we've taken have been minor steps because I wanted to take the word of the Republicans that they would work with us.
REIDRemember, they said way back in 2005 that they wouldn't filibuster anyone else for any of the president's team unless there were extraordinary circumstances. Well, that has just simply -- they have now, for 4 1/2 years, any part of the president's team, either the -- any part of the executive branch, now including judges -- they've just said any, and that has been a real problem.
REIDAnd it's -- you know, as I look back, Diane, and I don't have to look very far -- is it any wonder that the American people look at Congress as they do? This will be the most do-nothing Congress since 1947 when we had President Truman calling it a do-nothing Congress. The House of Representatives has literally done nothing.
REIDWe've been able to do a few things in the Senate, like the Farm Bill, like immigration reform, like marketplace fairness. We've been able to do a few -- post-war reform, but the House has done nothing, and, now, to pile on top of that, just refusing the president to have any part of his team, we had to take action, drastic action, to respond to the American people looking at Congress as they do.
REHMAnd as bad as things are, the Senate has more comity than the House. Isn't this going to make bipartisanship in the Senate even more difficult?
REIDI'm sorry to smile, as you can't see on radio, but more dysfunction? I mean, gee whiz. I mean, when you have constitutionally necessary posts like judges who they refused to put in office -- take, for example, the D.C. Circuit, which was the culmination of this fight. If we had hired the best search team in the world to find the four most qualified people to fill these open spots, you couldn't do better than Caitlin Halligan and the three that they just turned down.
REIDIt is just awful what they've done to just, in fact, just reject any reasonable response to allowing the president to have the team that he wants. So I had no choice, and that's why Democratic caucus, my senators, responded almost to the person to not do this. We had three Democrats that didn't vote with us, but, frankly, if I'd needed a couple of those, I could've gotten those, too.
REHMCan you, though, blame Sen. Mitch McConnell for calling the move a Democrat power-grab?
REIDWell, I don't know if I'm blaming anybody, but he's the one -- and we quoted him on the floor when I -- right before the vote, that he said the Senate has to change. I agree with him. And I think that he had to have his fingers and toes crossed when he said that because, as to what they had done, if he had been in my position, he would've done the same thing.
REHMAnd you expect that, if Republicans do regain the majority in the Senate, they will do exactly as you have done.
REIDI hope so. I think the rule should apply to Democrats and Republicans. As I said again right before the vote, if there is a Republican president, the Republican president should have his team. Does this mean everyone will be approved of? Of course not. Well, there are a couple of nominations pending right now that there is some Democrats and the Republicans don't like this individual or individuals.
REIDFine. But a president should be able to have his team. Where in America does it say that a majority is not good enough? This country, for 140 years, got along just fine without all these rules. And since 1977, we've changed the rules 18 times in the Senate and will continue to change them. That's the way it should be.
REHMSo what do you see as the immediate implication not only for presidential nominees but for the future functioning of the Congress?
REIDDiane and all your listeners, what I see is a president of the United States, in this instance Barack Obama, in the future, some other president, when he comes into office, he can put together the team he wants. And that's what he deserves. That's what the American people expect him to have. And as far as substantive legislation, there is no reason that we need to start worrying about changing the 60-vote rule on that.
REIDBut in fact, if some future leader decides that's what they want to do, then they can have a vote before the full Senate and decide if that's what they want to do. The Senate is a democratic body. It always has been. We work on collegiality just like judges do. But there comes time when collegiality breaks down, and you have to do something. That's why we've changed the rules 18 times since 1977.
REHMI'd be interested in your reaction to Republican charges that there was not enough work for the U.S. Court of Appeals and that was the reason they were blocking those nominees.
REIDEven former Republican justices, some -- they're not justices. Judges, circuit court judges, even some who are sitting there now, who are Republicans, know that that's not true, and they've said so publicly. This is an extremely important court. They deal with the most complicated cases that can come. Some say the court is more important than the Supreme Court.
REIDAnd they work in very complicated cases, and, of course, they need everyone there. What the Republicans are concerned about is the fact that they have -- because a deal in 2005 -- I was part of it, I'm sorry to say, because it didn't work out very well -- we put on that court some of the most extreme right wing people you could find. Janice Rogers Brown thinks there's a Communist behind every bush even now. And the court was not working appropriately. We had more than 25 percent of the court is vacant, and that's not right.
REHMHarry Reid, he's the majority leader. Thank you so much for joining us, sir, and good luck going forward.
REIDI listen to your program all the time. I'm grateful to have the opportunity to be on it finally.
REHMThank you and Happy Thanksgiving to you.
REIDThanks so much everybody. Bye.
REHMAnd welcome back. Joining us now by phone, former U.S. Senator from Maine, Olympia Snowe. Thanks for joining us.
SEN. OLYMPIA SNOWEI'm delighted, Diane. Thank you for having me this morning.
REHMThank you. And first, your thoughts on the deal with Iran on nuclear development.
SNOWEWell, you know, obviously I think that it continues to be a significant concern as to whether or not they will have adequate verification measures in the interim and given Iran's ability to have developed, you know, these -- moving towards the capacity for developing nuclear weapons. And, you know, there have been various estimates as to, you know, how quickly they can be amassed. And so I have concern about this interim proposal because it puts on hold, it pauses -- puts a pause on their continuing work towards enrichment.
SNOWEBut nevertheless, it doesn't do anything to draw down in the interim. So whether or not that gives them the latitude and the possibilities in the future and gives them more room for maneuvering in this regard remains to be seen. And I think that that's the overriding question is to whether or not it's going to be effective in the next six months in the course of the agreement discussions, as to whether or not it continues to give them the latitude likely...
REHMHow likely do you believe it is that the Congress will vote on tougher sanctions in the interim?
SNOWEWell, you know, I think that there's a strong move in that direction. I think the House has already passed 15 initiatives, so now it just would be up to the Senate. And obviously a number of senators have already indicated that they're going to be introducing a resolution. And so, you know, it is very likely, you know, unless they and the administration come to some agreement on putting it on hold until the six months, you know, is passed and then to see what results have, you know, occurred, you know, due to the budget -- I mean, due to the Iran negotiations.
REHMAnd now, moving on, you've said the vote to eliminate some filibusters is going to lead to even more polarization in the Senate. What kind of action would you have preferred?
SNOWEWell, you know, frankly, Diane, what it really requires is both sides working out their differences. And when they, you know, hit stumbling blocks, such as this with the District Court of Appeals and nominations or other issues, it does require, you know, both leaders working through their differences and how they can overcome them and what kind of a resolution can be, you know reached on these issues, rather than taking, you know, an historic action of this kind by, you know, essentially unilaterally changing the rules of the Senate. Because changing the rules of the Senate requires a two-thirds vote.
SNOWEIn this case, it, you know, occurred on a majority vote to jettison a 60-vote requirement that has been imbedded in the traditions and the practices of the institution. Every time it takes steps in those directions, obviously it undermines, I think, the ability of the institution to work as a more collaborative institution building consensus that is predicated on majority rule. But it also is -- depends upon building consensus with the minority and accommodating minority rights.
SNOWEWe don't want the institution of Senate to become a majority rule institution like the House of Representatives.
REHMAt the same time, having just spoken to Senate Majority Leader Harry Reid, his belief is that the president, whoever or whichever party he belongs to, has the right to have his nominees approved upon. Therefore he said Mitch McConnell's statement, that if Republicans were in the majority they would reverse exactly what the Democrats have done to ensure that they're nominees go forward, so his point being that the president has the right to have his own people in place and that Republicans were completely blocking that process.
SNOWEWell, I don't disagree with the premise that, you know, elections have result and consequences and the president deserves to have his nominees, whether it's in, you know, in the federal agencies and cabin officials and judges. Obviously there's going to be times where there will be differences, and they're legitimate differences oftentimes on judicial nominees.
SNOWEAgain, it goes back to the core of what the Senate's all about in building that consensus and accommodation. I hesitate to think about how the Senate would work if every time a going back and forth and changing the rules of the Senate that have really been, I think, imbedded in the essence of how the Senate has worked, you know, for the last two-plus centuries.
SNOWEAnd I think it's important to recognize that, and to further build, I think, a more cordial collegial relationship, you know, within the Senate between the leaders and among the members. And it takes times. It takes patience. But if, you know, you can't get your way, you just move to change the rules of the Senate on a majority basis and jettison a 60 vote, I mean, I think that doesn't bode well for the future...
SNOWE...because then you don't have any continuity. You don't have any consistency. And it isn't what the Senate's all about, which generally is a refuge from the passion, you know, of the politics. It's tempering the efforts to move indiscriminately or quickly as might be the case in the House of Representatives. I mean, so each institution has its own purpose and function, and he has to carefully calibrate any changes premised on that.
SNOWEAs you know, in 2005, the Republicans recommended this exercising the nuclear option by, you know, removing the 60-vote requirement in judicial nominees. And I was one of 14 -- called the gang of 14, seven Democrats and seven Republicans -- that worked together, developed a mutual agreement in which we could avert, you know, changing the rules of the Senate and reached a mutual accord based on trust. And so that's the way we did it.
SNOWEI wish there was more impetus in the Senate and a critical mass in the Senate to have built that same kind of approach as opposed to just spontaneously changing the rules of the Senate. It's doesn't bode well. And it just doesn't build the collaborative atmosphere that's so essential to getting things done that obviously are not getting done currently.
SNOWESo this sort of makes matters worse. It doesn't mean to say, you know, both sides are wrong, both sides are right. There are some problems here on both sides.
SNOWEAnd either they both should recognize it but do what's right for the institution for the country and the final analysis.
REHMAnd of course legislation is still subject to filibusters, so I would be wondering whether centrist Senators like yourself would be less likely to team up on issues like immigration overhaul.
SNOWEWell, yes. I mean, that's right. I think that it really undercuts that capacity, you know, for building, you know, some bipartisan relationships on these issues that are pending. I mean, very little of consequence has been addressed in this Congress, once again, in the aftermath of a least productive Congress last time. And now this may surpass it according to some recent reports. But nonetheless, I don't know how this helps to advance, you know, a more consensus oriented approach to some of the key issues that are out there that have potential.
REHMAnd that is my final question: Do you have any suggestions for moving forward together?
SNOWEWell, I think they're going to have to work mightily hard, you know, under these circumstances because I know that there'll be pressures, you know, not to move forward. I mean, and it also puts pressure in the next Congress as well because then, what's the next step, you know, removing a 60 vote on legislation? So I really think that both sides have to stand back and see what is possible under these circumstances and whether or not the two leaders can get together and talk and discuss a legislative agenda for the remains of the year.
SNOWEThat means getting out a plan by Dec. 13 from the House Senate conference as well as putting an end to the uncertainty about funding the government beyond Jan. 15 and raising the debt ceiling beyond Feb. 7. They should get that done once and for all in this agreement that's required of the conference committee by the 13th.
REHMThank you so much for joining us, former U.S. Senator from Maine, Olympia Snowe. Have a good Thanksgiving.
SNOWEThank you, Diane. Thank you.
REHMAll right. And now turning to our guests in the studio: Jonathan Weisman of the New York Times, Norman Ornstein of the American Enterprise Institute, Stephen Dinan at the Washington Times. Jonathan Weisman, you've heard both Harry Reid and Olympia Snowe. Your thoughts.
MR. JONATHAN WEISMANWell, one thing that Sen. Snowe said was that there could be a disincentive for people to get together and work together. And I think that that will happen in the immediate aftermath. But I actually think that if you got to a point where there was majority rule, 51 votes on legislation -- and I think that seems probably where they're heading -- you actually could be empowering a group in the center.
MR. JONATHAN WEISMANBecause if in a narrowly divided Senate -- and I think we will have narrowly divided Senates going into the future -- there will actually be a great incentive for a small group in the center to be able to band together and control what gets 51 votes. I actually think that, unlike in the House where the members are beholden to the leadership, in the Senate, senators aren't as beholden to the leadership. And I actually think that there's an opportunity here for a center right left coalition to develop who really could actually control the flow of legislation. Fifty-one votes is not actually that easy to get in the Senate.
REHMVery interesting. Norm Ornstein, your thoughts.
MR. NORMAN ORNSTEINYou know, as I listened to Olympia, I thought a couple of things. The first is Olympia's lamenting the decline of the Senate of old, even the Senate of 2005, which had these sharp differences. Back then, you had 14 senators, seven from each side, with the acquiescence of the leadership working out a deal. You had seven Democrats this time who were more than willing to work out a deal. There were effectively two Republicans, Susan Collins, John McCain.
MR. NORMAN ORNSTEINReid mentioned a few days ago that he'd had a conversation the night before this action with one senator with whom he's served for a long time in the House and in the Senate. He didn't say who it was, but I think we know who served with him in the House and the Senate. And this senator said, can't we, you know, stop this? I can put forward a proposal where you get one of the three nominees for the D.C. Circuit. And Reid said to him, well, how many votes do you have for that? He said, I don't know.
MR. NORMAN ORNSTEINSo we clearly did not have these negotiations. And it gets to the larger point, which is the rules matter in the Senate. But what matters more is the culture. When you had a culture where you needed to reach out to the minority and the minority was willing to work with you, then it worked just fine. That's gone. And this is a very different Senate from 2005. And it's a Senate where the minority's behaving in a fashion unlike we've seen before and that's what led to this.
REHMAnd you're listening to "The Diane Rehm Show." Stephen Dinan, your thoughts.
MR. STEPHEN DINANI agree with Jonathan. I think that we probably are looking towards the end of filibusters, including on legislation. You heard Harry Reid mention there at the end, essentially hint, that, OK, if a future leader wants to change the rules, they can go ahead and do that. You know, as a random guess, I -- if we still have filibusters within a decade, I would be surprised. You know, I guess there are a lot of different forces that are going on here. I guess the one thing I would introduce into this conversation is the importance of the D.C. Circuit.
MR. STEPHEN DINANAnd it's no surprise that this came at the end of three successive filibusters of D.C. circuit nominations. There's a belief, even among some Democrats, that what you saw last week was a worry that Democrats are in trouble in the 2014 elections. They need to get as many nominees through in the next year as they can, first of all just so President Obama has a full team going forward, but also so that they can get that court in as best shape as they can in preparation...
DINANSo the court right now is divided -- four Republican nominees, four Democratic nominees as the regular active judges. But there are six senior judges of whom five were Republican appointees which, when they are sitting on bank and when they hear cases, the court has a Republican ideological tilt. And Democrats, in particular Harry Reid, are furious at some of the decisions that have come out of that court.
DINANThe National Labor Relations Board recessed appointments case and some other decisions. And so a lot of this was very much about getting the chance to be able to get those nominees onto that court and change the ideological balance.
REHMAnd I think we should mention that in fact that court deals with a great many regulatory issues about which this White House is very concerned. I'm very interested, Jonathan Weisman, in your thoughts that we are heading toward 51-vote majority vote, even for legislation. And you did not comment on that, Norm. What do you think?
ORNSTEINI think it's certainly within a decade. That's absolutely right, and probably sooner than that. And I do believe, by the way, that, you know, for decades we had the equivalent of mutually assured destruction between the parties. That's where the nuclear option came from, that neither party would change the rules out of fear that the next guy would do worse.
ORNSTEINDemocrats believe that Mitch McConnell wouldn't hesitate for a nanosecond if he were in the majority and had a Republican president at this point. So there was no deterrent effect anymore. But I think Jonathan's point is the right one. And in the short term, let me say, this is not going to block further legislation. If there's legislation that would've passed the Senate with a couple of Republicans, it wasn't going anywhere in the House.
ORNSTEINIf it's legislation that McConnell and Republicans see as in their own interest, they're not going to stop it now because of the principal that we've changed the rules. But over the long run, the Senate's different from the House. And a part of the reason is most senators have at least some heterogeneity in the people they represent, unlike most House members.
ORNSTEINSo you look at the dramatic differences in the vote, for example, on the fiscal cliff -- 89 senators, including some of the most conservative, supporting it, barely a third of the Republicans in the House. And I think what we're going to see is, even if there's a 51-vote majority that the way you're going to get 51 votes is still going to require moving some degree to the center.
REHMNorm Ornstein of the American Enterprise Institute and co-author of "It's Even Worse Than it Looks." Short break here. We'll be right back.
REHMAnd welcome back. Time to open the phones. I'd like to hear your thoughts, your comments on the actions of the Senate last week to impose what has been called the "nuclear option." I gather Sophia in Greensboro, N.C., you really do not like that term.
SOPHIAHi, Diane. I appreciate the opportunity to participate in this important discussion.
SOPHIAThank you. So I personally believe it's irresponsible to call the filibuster change as, "invoking the nuclear option," especially given the recent negotiations with Iran. And, you know, when the international media reports that the U.S. Senate is invoking the nuclear option, what will terrorists or other nations possibly understand about this political change. So I want to know who came up with this terminology. I mean, I understand this is a big procedural change in the Senate.
SOPHIABut, Diane, please ask the leaders why was this called a nuclear option.
REHMI think it's a good question. Norm, do you have an answer?
ORNSTEINYeah, it goes back 2005, and it was Bill Frist's suggestion that, in the middle of the stream, on the floor of the Senate, he would change the rules by a majority. The rules explicitly say that you can filibuster a rules change, and it takes a two-thirds of the Senate present and voting to overcome that. So changing the rules in this way was seen as such a dramatic departure from normal practice that it was called the nuclear option.
DINANAnd I think it was actually a former colleague of mine, Charles Hurt, who at the time was one of my reporters, who was working -- who covered judiciary issues and nominations for us. He talked with Trent Lott, and Trent Lott is the one who actually came up with the phrase. He said that would be like going nuclear. And it became known as the nuclear option after Lott's comment.
REHMInteresting. Well, Sophia, you know, once in place, it's likely to stick. Let's go to Mark in Traverse City, Mich. Hi, there.
MARKHi. A comment and a question.
MARKMy comment is I would have liked to have seen the Democrats first insist that the filibuster would actually be a talking filibuster and try that little change first. And my comment -- or my question would be, if they did that, would any other legislation go through while the filibusters are going on? Thank you.
WEISMANWell, there was a slate of proposed changes from these young Democrats in the Senate -- Merkley from Oklahoma -- I mean, I'm sorry, from Oregon, and Tom Udall from New Mexico -- that included a lot of changes. They were that you could no longer -- you could no longer filibuster something called a motion to proceed -- that's just a movement to go to a bill -- that you could not filibuster a motion to name -- formally name Senate and House negotiators to a bill and that, if you wanted to filibuster a bill, actual legislation, you had to go out there.
WEISMANYou had to muster 41 votes to extend debate, not 60 votes to cut off debate. And then once you got those 41 votes on the record to extend the debate, then you had to have somebody out there talking and talking and talking. And, as soon as the nuclear option -- sorry -- was invoked last week, Jeff Merkley was back out telling the press that he wanted that full slate there. So I think that it could happen. But the problem is, is that Republicans and Democrats don't want to do that. They don't want to go out and have to (unintelligible)...
REHMThey just want to say, yeah, I object, and that's it.
WEISMANThat's right. They don't want to do that.
ORNSTEINYou know, I was right in the middle of those negotiations -- the idea to go to 40 required to end debate rather than 60 -- or to continue debate, rather than 60 to end it, which had come from stuff that I had written. And I worked with senators at that point, and, in the end, we got a deal that meant modest changes. This was in January, at the beginning of the new Congress.
ORNSTEINWe got a deal, which Democrats believed not only included explicitly no filibusters on district court judges or a movement forward, or on executive nominees, but also that, just as in 2005, 2006, if it came to Circuit Court nominees, it would have to be under "extraordinary circumstances," an individual judge having views so extreme or, more than that, having a lack of qualifications or moral issues.
ORNSTEINAnd it wasn't just these three circuit court nominees, it was filibustering Mel Watt, a veteran member of the House, long-time member of the banking committee, with deep interest in housing issues, from being able to take over the Housing Finance Administration, as well as the three Circuit Court judges.
ORNSTEINAnd I talked to some of the more senior Democrats who did not want to change the rules and who did not provide enough votes for Harry Reid to go ahead with a major change back in January. They felt violated. They thought that the Republicans had reneged on that agreement. That's why people like Dianne Feinstein and Barbara Boxer, Max Baucus -- people who have been very reluctant in the past to change the rules, they've been there for a long time -- were now willing to vote with Reid.
REHMStephen, I think what the American people care about is getting things done. Does this so-called nuclear option begin the process of moving things forward, undoing the logjam?
DINANWell, this is, so this is for nominations. It absolutely gives the president a clear path to get nominations through. So he will -- he'll have an easier time. There's some problems he's going to have with some really obscure boards, like the Federal Energy Regulatory Commission, where there were going to be some openings coming up soon. And he might have had a problem getting people through if there had been a 60-vote threshold. He will have an easier time getting people through for some of these obscure boards and just overall filling his cabinet and, in particular, filling those courts.
DINANAnd Norm mentioned something during the break about the fact that this actually does -- it only changes the vote threshold. So it doesn't actually change all the time agreements, so Republicans still have ways that they can draw things out. And for your listeners, when you get cloture, which is what the term is called, you are then guaranteed 30 hours of debate. Actually, on the nominees, some of them may be lower now, right? Eight hours, I believe. But...
ORNSTEINBut not Circuit Court nominees.
DINANYou're guaranteed 30 hours of debate after that. So you can still use this as a delaying tactic. You just can't use it as easily as a blocking tactic. So it does clear the deck somewhat for nominations. You know, on legislation -- I agree with what both of the guys have said -- there is -- I think it probably -- I don't think this makes it worse. I don't think that it actually increases partisanship.
DINANThere's a lot of academic research on whether it actually matters -- whether you're talking about the 60th vote or the 50th vote. And whether you're just changing, you know, whether actually getting to 60 is that much more difficult than getting to 50 or whether you're just sort of changing the locus of where the negotiations go on. In the end, look, I view it this way. Harry Reid lit a fuse last week.
DINANAnd it's entirely up to the Senate -- all the senators, in particular Republicans, but all the senators how big the explosion is. They can decide, OK, we've reached the new normal. We're only going to go as far as we've gone right now with nominations. We'll leave the Supreme Court where it is, and we'll leave legislation where it is. I don't think that happens, but they do have a chance to sort of see where they are right now and take a breather.
WEISMANWell, it's interesting because the majority, the Democrats, also have to change the way they behave. The fact is that there was a lot of legislation coming to the floor of the House -- I mean, I'm sorry, the Senate -- that was never intended to pass, that they would come up, there would be a war on women, and then Chuck Schumer would quickly ready some bill that was supposed to address the war on women, knowing that it wouldn't get 60 votes.
WEISMANThey would bring it up. Immediately, Harry Reid would file for cloture -- that means file to cut off debate to bring it to the floor -- knowing full well it wasn't going to pass. You know, we had this measurement of how obstructionist Republicans were being, by saying, well, they filibustered X number of cloture votes, the numbers of bills to go to the floor. But there's another measure, too.
WEISMANThere's another measure of how many times Harry Reid immediately filed to fill up the tree to not let Republicans amend anything and then to cut off debate. And then, it -- there was a -- basically a procedural arms race going on that neither side was innocent on at all. And I really -- it gets me a little me a little incensed because there were things that Harry Reid was doing that no majority leader had done before.
WEISMANI mean, filling the tree -- that is, to take a bill and to make sure that there was no possible way to amend it -- that was done occasionally. Robert Byrd did it way back in the '70s for the first time. Bill Frist did it, you know, a few dozen times. Harry Reid made it almost automatic on certain bills. And it incensed the Republicans. It incensed them.
REHMBut was -- was he forced to because of the obstructionist position that Republicans had laid out from the first day of President Obama's administration?
ORNSTEINIn some cases, yes, in others, no. In a lot of cases, it was done to protect Democrats from having to cast votes on amendments that would be used against them politically. When we were in the midst of negotiations over a deal on the filibuster, one of the things the Democrats offered was opportunities for Republicans to do amendments in return for easing up on filibusters in many of these cases.
ORNSTEINAnd there's another point here, too, which is there were a lot of filibusters done by Republicans against nominees that ultimately passed unanimously. Now, why? Because you could take two or three days -- in fact, you could take two weeks on a nomination. And the most precious commodity in the Senate is floor time...
ORNSTEIN...floor time. Now, you put that together with another reality, which is on district court nominees, the traditions of the Senate are that the senators from the home state can veto any nominee. We have seen a blockage of dozens and dozens of district court nominees because the Republican senators in the state refused to approve anybody, including people that they liked, because they want to keep the slots open.
ORNSTEINSo there were a lot of underlying ways and subtle ways of obstruction that were applied here. Reid is not blameless in this. Jonathan's absolutely right. But the whole tenure of things changed in the last five years, in a way that's just unlike anything we'd seen before.
REHMAll right. Let's go to Elisa in Charlottesville, Va. You're on the air.
ELISAHi, Diane. Thank you so much for taking my call.
ELISAAnd I love your show.
ELISAHate to miss it. But that last point interests me because five years ago the minority leader said we're going to do everything we can to stop this president. They've done so. What else could be done? I mean, if you have a hundred and, what is it, 170 vacancies between the judiciary and the executive branch, what do you do? How do you lever?
REHMGood question. Jonathan Weisman.
WEISMANWell, you know, I wrote a piece about how much worse it could get. And I got a lot of very vituperative, nasty emails saying: How much worse could it get? Actually, it could get a lot worse.
WEISMANThere is still huge blocks of nominees that are approved by unanimous consent, usually right before a break, like a Thanksgiving break. A lot of them are military appointees or very low-level appointees. And, now, the Republicans, one person, Ted Cruz, could say, no, I'm not going to approve this block of nominees. And you're going to have to do each one, one at a time, and go through what Stephen was talking about, the whole gauntlet of procedural votes. It could get a lot worse. I'm not saying it will. But it could definitely get worse.
ORNSTEINThe next change that we're likely to see is not the elimination of filibusters on bills but an easing up of the unanimous consent rule.
REHMThere's got to be something.
ORNSTEINYeah. You know, what's interesting, Tom Daschle and Trent Lott -- who were, respectively, majority and minority leaders and then flipped positions, and who were the last two who actually got along and worked together -- had a piece in the Post. They're both at the bipartisan policy center now saying the use of holds, indiscriminate use of holds by individual senators, which is in effect a senator saying, I will deny unanimous consent to move forward, which raises a whole series of hoops -- you can get around it, but it takes days -- that it shouldn't be unanimous consent.
ORNSTEINAnd my guess is, if that's what happens, if we see the Cruzes of world blocking everything on the basis of unanimous consent, they're going to change the rules again.
REHMAnd you're listing to the Diane Rehm Show. To J.C. in Louisville, Ky., you're on the air.
J.C.I want to pile in on what you all were just talking about. You know, when Mitch McConnell stated that he was not going to allow this president to have anything passed, he should have just had Just Say No tattooed on his forehead because that's exactly what he's been doing. And I am from the state Mitch McConnell comes from, along with Rand Paul, and they have been nothing but obstructionists since they came in.
J.C.And, like the previous caller, you know, you finally get frustrated to a point where my agenda is totally being subjugated by a bunch of -- couple of people, who just don't want to do anything for the country at all. And they're allowed to do that. So the rules had to change. I noticed that Mitch -- I mean, the senator from Arizona, McCain, he said that the Senate should be a slow stew where things can simmer -- something to that effect.
J.C.Well, they've pretty much jumped in with the Democrats -- excuse me, the Republicans in the House of Representatives, and have pretty much taken their agenda, that they're not going to do anything. The government comes to a standstill. People say, I hate government. Government doesn't do anything. And then they just want to ignore it and not try to help anything get done.
REHMAll right. J.C., thanks for your call. And that is clearly the perception out there, that nothing gets done. Stephen.
DINANYeah, let me offer a bit of a defense of minority rights and of...
DINAN...of the reason for a filibuster. You know, Republicans have certainly enjoyed the filibuster over the last few years and then shown why they want it. But take it from the standpoint of Harry Reid, if you were to, say, get rid of the filibuster for legislation, and if you actually were to have freewheeling debate on some of the amendments that Reid has tried to prevent debate on, you would have Keystone Pipeline would be voted on. And there's certainly an easy majority there. You'd have Yucca Mountain.
DINANWe probably would actually be building this nuclear waste repository in Harry Reid's home state if you got rid of the legislative filibuster rules and were able to raise those. So -- you -- there is something to be said for minority rights in creating that stew. And that stew that McCain was talking about is not always a bad thing.
REHMSo, Jonathan Weisman, what do you see going forward?
WEISMANI think that there will be some piece of legislation that will be very valued by a lot of people -- maybe, god forbid, there is another gun massacre and somebody says, we need to get something on background checks. It goes down. It gets 58 votes, and that's it. I mean, they want -- there's a precedent that was broken last week.
WEISMANAnd once you break a precedent, once you break a taboo, there's -- it's no holds barred. I think that there will be, in the near future, some piece of legislation that gets -- that flounders at 58, 59 votes, and it changes the filibuster forever because legislation is really where it actually comes down to.
REHMNorm, what do you see going forward?
ORNSTEINYou know, I wasn't happy with what happened, Diane. But I supported it because I think we had crossed a Rubicon, and this was a different set of procedures. It -- I think we're going to see exactly what Jonathan said. But you've got enough institutionalists still in the Senate that they're going to try and pull it together so that those things don't happen very often and that the majorities that come out are in the middle more often than not.
REHMVery quickly, Stephen.
DINANI think what happened last week was actually more than just a filibuster. You saw somebody breaking the rules, so to speak, to change the rules with a majority vote. That will happen on many more things now.
REHMStephen Dinan of The Washington Times, Norm Ornstein of the American Enterprise Institute, Jonathan Weisman of The New York Times, thank you all. Have a great Thanksgiving.
GROUPYou, too, Diane. Thank you.
REHMAnd thanks for listening, all. I'm Diane Rehm.