The vote to change the rule passed 52 to 48. Three Democrats — Sens. Carl Levin (Mich.), Joe Manchin III (W.Va.) and Mark Pryor (Ark.) — joined 45 Republicans in opposing the measure. Levin is a longtime senator who remembers well the years when Democratic filibusters blocked nominees of Republican presidents; Manchin and Pryor come from Republican-leaning states.
Levin denounced both Republicans and Democrats in a floor speech after the vote. He said GOP obstruction of Obama’s nominees has been “irresponsible” and “partisan gamesmanship.” Republicans “are contributing to the destruction of an important check against majority overreach,” he said.
But Democrats have used the filibuster in the past, and “changing the rules by fiat” means that “there are no rules” in the Senate any longer,” he said. “Today we are once again moving down a destructive path,” Levin said.
According to Reid, the rules change only applies to executive branch and lower court judicial nominations, and does not apply to Supreme Court nominations. That idea is a joke, as Levin’s comments imply While there are colorable arguments as to why the Senate might want to have different rules for executive branch and judicial nominations, the line drawn by Senator Reid will not stand. As several Republicans threatened before the vote, if and when there is a Republican majority in the Senate again, there will be no filibuster of a President’s Supreme Court nominees.
As I noted earlier today, I would have preferred a deal in which, say, nominees were swapped to end the impasse (as was done to end the blockade of President Bush’s Michigan nominees to the U.S. Court of Appeals for the Sixth Circuit) and there was an agreement to allow prompt majority votes on all nominees after an intervening election. Such a deal could have allowed the end to judicial nomination filibusters with less partisan rancor (which is why I supported such a deal when Bush was President too). Alas that was not to be. On the bright side, the era of super-majority votes for judicial nominees is over, and I look forward to seeing the slate of nominees put forward by the next GOP President nominates. Judge Volokh? Justice Barnett? Hmmmm.