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Filibuster change was inevitable

Dec 9, 2013 - By Carl Leubsdorf

And a case can be made that it was necessary as well.

Over the past century, the Senate has voted several times to curb the minority's ability to prevent the majority from acting, most recently Nov. 21, when it voted to reduce from 60 to a simple majority of 51 the number needed to limit debate on executive and judicial nominations (except the Supreme Court).

That vote differed in three significant ways from prior ones:

- It followed strictly partisan lines, with 52 of the Senate's 55 Democrats outvoting the 45 Republicans and three Democratic dissidents.

- The change affected votes on judicial and executive nominations, but not legislation like the civil rights bills that preoccupied the Senate in the 1950s and 1960s. It will still take 60 votes to invoke cloture on legislation and Supreme Court nominations.

- Republicans erupted predictably by assailing Democratic leader Harry Reid as a "dictator" -- while vowing they would, of course, employ the very changes they were condemning when they next win the White House and Senate. That's their prerogative; as Obama accurately said in 2009, "elections have consequences."

Lest anyone think this is a fight about principle, Republicans threatened -- but failed -- to make similar changes when a Democratic minority blocked conservative nominees of President George W. Bush. "No partisan minority of the Senate has a right to block a bipartisan majority from casting a vote to confirm this president or any president's nominees," Texas Sen. John Cornyn, one of Reid's critics now, said in 2005.

Cooler heads prevailed then, and each subsequent time Senate deadlocks threatened these changes. But the Senate's increasing partisanship reflects our national politics, making action not only inevitable but necessary.

The steady increase in filibusters, and resulting cloture votes, shows the extent to which minority obstruction was threatening to prevent whichever party controlled the executive branch from having the personnel it needed to manage the federal government.

In the first Kennedy-Johnson term in the 1960s, there were seven cloture votes; in Ronald Reagan's first four years, 46; in Bill Clinton's, 96; in George W. Bush's, 110; and in Barack Obama's, 164.

During the civil rights era, these battles were bipartisan, with Democratic and Republican senators on both sides. But they've become increasingly partisan, as conservative Democrats migrated to the GOP and liberal Republicans became Democrats. In recent Senates, the most liberal Republican was more conservative than the most conservative Democrat.

Threatened filibusters have made it harder for the Obama administration to fill midlevel positions in Cabinet departments, one reason for the number of vacancies in its fifth year in office.

Two recent fights illustrate the problem.

On Oct. 31, Republican opposition prevented the Senate from mustering 60 votes for Rep. Melvin Watt, a well-regarded African-American House veteran from North Carolina, as director of the Federal Housing Finance Agency, the first time since 1843 it refused to confirm a House member for an executive position.

And when Obama named two women and an African-American man to the U.S. Circuit Court for the District of Columbia, Republican opposition prevented them from getting 60 votes, even though no one even pretended they were unqualified.

The GOP argued that the court's four Democratic appointees and four Republicans were not overworked, so the court didn't need its full complement of 11 judges. The real reason was that confirmation would give the Democrats a 7-4 majority among active judges.

Thursday's vote was followed by hysterical forecasts from Republicans and some outside analysts that it would make a bad situation worse. Maybe. The minority retains power to slow final votes, and GOP anger threatens other cooperation. But at least it should be easier for presidents of both parties to get approval of executive branch nominees, plus district and appellate court choices.

Unfortunately, that might also mean naming of more partisan district and circuit judges. And it almost guarantees a 60-vote requirement for any Supreme Court nomination. Because presidents would presumably still seek Supreme Court judges reflecting their ideology, some seats might go unfilled, since neither party has had 60 votes in the past 35 years, except for the nine months Democrats did in 2009-10.

Still, change was bound to happen eventually in a Senate often hamstrung by endless delays.

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Editor's note: Carl P. Leubsdorf is the former Washington bureau chief of the Dallas Morning News. Readers may write to him via e-mail at: carl.p.leubsdorf@gmail.com.

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