On Nov. 21, 2013, Senate Democrats made a historic rules change to end filibusters of judicial and executive branch nominees.
The move, which lowered the confirmation threshold from 60 votes to 51 votes, was considered so drastic that lawmakers labeled it the “nuclear option.”
It could soon backfire on Democrats, now that Republicans are about to take the Senate majority and, by 2016, possibly the White House.
But the rules change, orchestrated by Senate Majority Leader Harry Reid, helped Democrats achieve critical gains for their party in the judicial and executive branch that will help President Obama carry out and maintain what has become an increasingly unilateral strategy to move his agenda on immigration, the environment and other issues.
By sheer volume, Democrats are on course to confirm a near-record number of judges in the 113th Congress, which adjourns at the end of December.
Judicial confirmations tracked by the office of Sen. Orrin Hatch, R-Utah, show that the Senate is poised to confirm 129 judges to district and appellate courts, the third-highest number of any Congress since the Kennedy administration.
But the numbers aren’t where Democrats made the critical gains.
Reid’s biggest rules-change win provided Democrats a path to confirm Obama’s three nominees to the U.S. Court of Appeals for the D.C. Circuit, which is arguably the most important court in the land aside from the Supreme Court.
The D.C. Circuit is responsible for hearing a wide array of cases related to Environmental Protection Agency regulations, labor relations, banking, election laws and many other rules, regulations and laws churned out by the government.
This is the court that likely will rule on challenges to many of the Obama administration’s regulations relating to reducing coal-fired power plant emissions and changes to deportation laws, for example.
The court has already played a critical role in determining the survival of the healthcare law, recently ruling on a key challenge to the law’s contraception coverage mandate and the federal subsidies that keep Obamacare solvent.
Thanks to the rules change, Democrats in this Congress were able to easily confirm to the court Obama’s three nominees: Patricia Ann Millett, Cornelia Pillard and Robert Wilkins.
Republicans had previously moved to block the trio using the 60-vote threshold. They argued the appointees were too liberal and would tip the balance in favor of Democrats. The GOP maintained that the court’s light load did not necessitate filing every vacancy.
The three were confirmed to the bench, and the court now splits 7-4 in favor of Democratic appointees.
On Sept. 4, the newly filled court voted to vacate its earlier decision invalidating Obamacare’s federal subsidies for people purchasing health insurance in states that did not create insurance exchanges.
“The gamble paid off,” David Rivkin, a lawyer at the D.C. law firm of BakerHostetler who specializes in constitutional law, said of the rules change. “It was clearly intended to change the balance of power in the D.C. Circuit. And it is clearly something that has benefited the administration.”
Eliminating the filibuster also cleared the way for Democrats to confirm several key administration appointees who would likely have been blocked by the GOP.
With just days left in the majority, Senate Democrats last week voted 54-40 to confirm Lauren McGarity McFerran to the National Labor Relations Board, a move that will maintain the board’s 3-2 Democratic tilt.
They also confirmed Jeff Baran and Stephen Burns to the Nuclear Regulatory Commission. Both have worked behind the scenes in the effort to shut down a project to store nuclear waste at Yucca Mountain, Nevada, which is Reid’s home state.
During his eight years as majority leader, Reid made blocking the Yucca Mountain nuclear waste dump a top priority. Thanks to the rules change, he’ll surrender his gavel with that, and many other victories, under his belt.
