On November 21, Majority Leader Reid broke his promise not to employ the nuclear option when he and Senate Democrats eliminated the filibuster on nominations. They did so based on what Senator Hatch once described as a filibuster fraud. They did it in an attempt to divert attention away from the Obamacare nightmare, and to ensure that the D.C. Circuit Court of Appeals will be able to rubber stamp the President’s agenda. Rather than abandon their extreme, liberal, agenda in favor of bipartisan solutions in a divided Congress, the President and his political allies opted to mute the voice of the minority in the U.S. Senate.
CRS: “Cloture Motions Do Not Correspond With Filibusters”
In fundamentally changing the U.S. Senate, Leader Reid argued that it had to be done because Senate Republicans were filibustering nominees at an unprecedented rate.
“In the history of the Republic, there have been 168 filibusters of executive and judicial nominations. Half of them have occurred during the Obama Administration.” -- Majority Leader Reid, 11/21/2013
Leader Reid’s figure confused cloture motions – requests to end debate – with filibusters, the response to those requests. This was despite the clear admonition of a June Congressional Research Service report that “Cloture Motions Do Not Correspond With Filibusters.” And since the Majority Leader files nearly all cloture motions, Senator Reid himself created the very statistic he relied upon to force a rules change. Many of these were clearly unnecessary. In fact, 32 percent of all cloture motions in the past four and a half years were withdrawn before a vote. Even the fact checker at the Washington Post rejected the Majority Leader’s claim.
The Senate Has Confirmed Judges
The decision by Democrats to deploy the nuclear option was not caused by any problem with President Obama’s nominees being treated fairly. It also was not a problem of his nominees not being confirmed. This is particularly true when considering nominees on whom cloture was filed, but who were actually confirmed. So far in the Obama Administration, 86 percent of the executive or judicial nominations on which cloture was filed have been confirmed, higher than the 67 percent confirmation rate for President Bush’s nominees who had had cloture filed on them.
The Senate has confirmed 216 of President Obama’s nominees to lower court judgeships. Only two nominees have been defeated -- a success rate of 99 percent. In fact, during the 112th Congress, the Senate confirmed more judges than any Congress since the 103rd.
This year alone, the Senate’s confirmation of lower court judges far outpaces the rate for President Bush’s second term.
- President Obama has had 39 judges confirmed just since his second inauguration, including:
- 10 circuit court judges;
- 27 district court judges; and
- 2 judges to other Article III courts.
- As of December 10, 2005, President George W. Bush had 14 judges confirmed, including:
- 7 circuit court judges; and
- 7 district court judges.
1,707 Executive Branch Confirmations vs. Four Rejections
Democrats’ decision to forever change how the Senate operates also was not caused by Republicans’ handling of executive branch nominations. Republicans have worked with Democrats to confirm 1,707 executive nominees over the past four and a half years. Of all the nominations President Obama has sent to the Senate, only four have been rejected:
- During the 111th Congress, the Senate confirmed 920 nominees and rejected one: Craig Becker to be a member of the National Labor Relations Board.
- During the 112th Congress, the Senate confirmed 574 nominees and rejected two: Goodwin Liu to be a U.S. Circuit Judge for the Ninth Circuit; and Richard Cordray to be the director of the Consumer Financial Protection Bureau.
- During the 113th Congress, the Senate has confirmed 66 nominees and rejected one: Caitlin Halligan to be U.S. Circuit Judge for the D.C. Circuit.
Pace of Obama’s Cabinet Nominees Is Similar to Previous Presidents’
According to CRS, President Obama’s cabinet nominees have moved from announcement to confirmation about the same as previous Presidents’ nominees.
- President Obama’s cabinet nominees had waited 54 days on average.
- For President George W. Bush, the average wait was 52 days; and
- For President Clinton, the average wait was 55 days.
Validation of Senate Republicans’ Arguments
Senate Republicans have argued for months that the caseload of the D.C. Circuit Court – based on the standard established by Senate Democrats in 2006 – does not warrant additional judges. Republicans also pointed out that stacking the D.C. Circuit with three additional judges is intended to remove any meaningful check on the President’s regulatory agenda, most notably challenges to EPA regulations and Obamacare. Senate Republicans’ predictions were confirmed by media reports within days of Majority Leader Reid’s unprecedented power grab:
- “Senate’s filibuster rule change should help Obama achieve key second-term priorities” (The Washington Post, 11/21/13)
- “Filibuster change clears path for Obama climate regs crackdown” (The Hill, 11/23/13)
- “Liberals push wish list on Obama” (The Hill, 11/29/13)