Reid’s finger on nuclear button

Senate Majority Leader Harry Reid (D-Nev.) announced Tuesday that he is considering changing Senate rules to prevent Republicans from filibustering President Obama’s judicial nominees.

“I’m at the point where we need to do something to allow government to function,” Reid said when asked if he would consider using the nuclear option, a controversial procedural tactic for changing Senate rules. 

The proposed rules change would not affect Supreme Court nominees, said Democratic sources.  

The tactic would allow Democrats to change the Senate’s rules with a simple-majority vote.

“The Founding Fathers never had any place in the Constitution about filibusters or extended debate,” Reid told reporters. “This country operated fairly well for 140 years without filibuster protection.”

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Reid said he will insist that Republicans allow up-or-down votes on all three of Obama’s nominees to the D.C. Circuit Court of Appeals: Patricia Millet, an appellate litigator; Cornelia Pillard, a professor at Georgetown Law School; and Robert Wilkins, a district court judge for the District of Columbia.

On Monday, Reid fell six votes short of ending debate on Wilkins’s nomination. He was the third nominee to the court blocked by a filibuster in recent weeks.

He vigorously defended all three nominees’ qualifications; “Look at their educational background, look at their experience in the law, look at their moral integrity,” he said. “Why should we agree to something less than the law of the country?”

There are three vacancies currently on the 11-seat D.C. Circuit Court, which is considered the nation’s second most powerful court because of its broad jurisdiction over regulatory matters, including the Affordable Care Act.

Its eight judges are divided evenly between Republican and Democratic appointees. Democrats argue, however, the court has a conservative tilt because five of its six semi-retired senior judges, who handle overflow work, are GOP appointees.

A senior Democratic leadership aide said Reid could move before Thanksgiving but would first have to lock down the votes. 

“We’re working on getting the votes,” said the aide.

Advocacy groups supporting filibuster reform said earlier that they did not expect Reid to attempt a vote before the end of the year. 

Senate Republican Leader Mitch McConnell (Ky.) acknowledged Tuesday that Reid could change the rules with a simple majority vote.

But he characterized the controversial tactic as flying in the face of Senate comity.

“We know full well the majority could decide to break the rules to change the rules if they so chose,” he said. 

McConnell argued that Republicans are well within their right to reject Obama’s picks to the D.C. Circuit Court because the court’s workload is too light to warrant additional judges.

Senate Democrats and Republicans find themselves in reversed roles, compared to eight years ago, when then-Senate Majority Leader Bill Frist (R-Tenn.) threatened to go nuclear over President George W. Bush’s stalled judicial nominees.

Democrats warned that changing the Senate’s practices through a ruling of the chair sustained by a simple majority vote would destroy the institution.

“I would never, ever consider breaking the rules to change the rules,” Reid told colleagues in April 2005 during the Senate debate.

“Ultimately, this is about removing the last check in Washington against complete abuse of power,” he added.

At the time, McConnell, the Senate GOP whip, was fully on board with the plan to change the rules unilaterally.

“I never announce my whip count. But I’m telling you, there’s no doubt in my mind — and I’m a pretty good counter of votes — that we have the votes we need,” McConnell said. “And that step will be taken sometime in the near future at the determination of the majority leader.”

The GOP leader recently expressed relief that Frist did not pull the trigger on the rules change.

“Look, I’m glad we didn’t do it,” he said in July. “We went to the brink, and we pulled back because cooler heads prevailed.”

Democratic lawmakers and advocacy groups pushing for rules reform say Reid has already begun laying the groundwork for a vote.    

“I know that he’s talking to people,” said Sen. Tom Harkin (D-Iowa). “I think we should have changed the rules a long time ago.”

Reid on Tuesday declined to comment on whether he was actively whipping his fellow Democrats or taking the temperature within his caucus.

Asked if he had enough votes to sustain a rules change, he replied, “We’ll see.”

Democrats who have been leery of changing the rules in the past are now warming to the idea.

Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.), the chamber’s president pro tem, has become outspoken in calling for reform.

Sen. Dianne Feinstein (D-Calif.), another longtime skeptic of a unilateral rules change, says she changed her mind in recent weeks.

“I am for it,” she told reporters Tuesday. “After 20 years on this committee, Judiciary, it’s never been as bad as it is now.

“So it’s got to change. And I understand there’s going to be blowback,” she added. “We’ll just have to handle it. In the time we’re here, we have to do the people’s business.”

 A Democratic aide said both Leahy and Feinstein spoke of the need for rules reform during a private Senate Democratic lunch on Tuesday.

Not all Democrats have lined up with Reid, at least publicly.

When asked if he would support rules reform, Sen. Max Baucus (D-Mont.) said, “To be determined.”

Sen. Joe Manchin (W.Va.), another Democrat who has wavered over a partisan-tinged rules change, said he is reviewing the matter but noted his predecessor, former Sen. Robert Byrd (D-W.Va.) opposed it.

“Sen. Byrd, he was very outspoken. So we’re looking at it. I’m very open-minded to it. I understand the frustration. You got to operate the place,” he said.

Jeremy Herb contributed.

This story was updated at 8:09 p.m.