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November 21, 2013

With Leahy Presiding, Senate Goes Nuclear

Leahy.FilibusterDuring his 38 years in the U.S. Senate, Patrick Leahy has spent plenty of time in the minority. So it's no surprise that, like many senior Democrats, he's looked warily over the years at proposals to empower the majority at the expense of the minority.

On Thursday, that changed.

Along with 51 other Democrats and independents — including Sen. Bernie Sanders (I-Vt.) — Leahy voted to curtail the use of the filibuster by a minority faction to block most presidential appointments. The historic rules change means that a simple majority will suffice to confirm nominees to federal district and circuit courts and to the president's cabinet. 

"I believe in using the rules. I don't believe in abusing them," Leahy told Seven Days Thursday afternoon. "I have enough experience under both Democratic and Republican leadership to know that you have the rules, but you don't abuse them."

In a symbolic gesture to the importance of the occasion, Leahy invoked his right as senate president pro tempore to preside over the body during Thursday morning's debate. In that position, he issued parliamentary rulings validating the legitimacy of the move. (He and Sanders did, however, sneak out of the Senate chamber just before the vote to appear in a photograph with visiting students from Champlain Valley Union High School.)

Majority Leader Harry Reid (D-Nev.) and other Democratic senators have cited recent Republican filibusters of several nominees to the U.S. Court of Appeals for the District of Columbia Circuit as the impetus for Thursday's move, but Leahy said no single action changed his mind.

"I think it was probably cumulative," he said.

Leahy did, however, point to last month's filibuster of attorney Patricia Millett's nomination to the D.C. Circuit as a particularly egregious abuse of the minority's power. He said that when John Roberts — now chief justice of the U.S. Supreme Court — was nominated to the D.C. Circuit in 2003, he was unanimously confirmed.

"It reached the point that [there was] a different standard for John Roberts and Patricia Millett. Both had equal reason to be on the D.C. Circuit. He was treated so differently than she was. They're both extraordinarily bright, accomplished lawyers," Leahy said. "It didn't even pass the laugh test to block her. So I'm hoping that now that this has been done, everybody will step back and say, 'Wait a minute. There's a reason why the Congress is at minus five points or whatever the heck the approval rating is. Let's get back to doing the work we should do.'"

As Minority Leader Mitch McConnell (R-Ky.) parried with Reid over the rules change Thursday morning, he warned that Democrats might regret the move when their party loses its majority. At that point, he suggested, Republicans might take the reform a step further and extend it to Supreme Court nominees, a group exempted from Thursday's changes.

"I say to my friends on the other side of the aisle, you'll regret this," McConnell said. "And you may regret it a lot sooner than you think."

Asked if he worried that Republicans might follow through on the threat and use it to confirm a future Republican president's Supreme Court nominee with a simple majority, Leahy said, "Of course they could."

"They can do that. Anybody can do that. Any majority can," he said. "What I would urge is that, look, when the frustration has reached this level, don't you think it's time for people on both sides to sit down and let's start working it out?"

Sanders, who has long supported filibuster reforms, was not available for comment Thursday. But in a statement provided by his office, he said that the American people deserve "a Senate that is not dysfunctional."

"Unfortunately, in recent years the Republican minority has engaged in an unprecedented level of obstructionism," Sanders said in the statement. "They have used the filibuster hundreds of times to delay or block the president’s nominees and to stop legislation from even being considered. Today’s decision by the Senate to let the majority rule on votes to confirm judges, cabinet secretaries and other senior administration officials is a step in the right direction toward ending dysfunction in the Senate."

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