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The Senate Did Not Really Abolish the Filibuster

Many news media have incorrectly reported that the Senate abolished the filibuster on Thursday. If you want to get picky, it really didn't. It takes a 2/3 majority to change the Senate rules and that didn't happen. What did happen was that majority leader Sen. Harry Reid (D-NV) once again tried to bring President Obama's nomination of Patricia Millet to the D.C Court of Appeals to the floor. To do so, he needed 60 votes. He didn't get them. The vote to take up her nomination was 57 ayes and 43 nays. Normally, that would be enough to kill the attempt to hold a vote on the nominee. But this time, Reid did something extraordinary. He raised a point of order claiming that he needed only 51 votes to bring this nomination to the floor, even though he knew better, of course.

When there is a dispute about the rules, the presiding officer makes a ruling after consulting with the Senate parliamentarian, whose full-time job is understanding the Senate's arcane rules and explaining them to the senators. In principle, the presiding officer of the Senate is the Vice President (Joe Biden) but it is a boring job and Biden rarely presides unless he thinks his vote will be needed to break a tie. On Thursday, Biden was absent and the President Pro Tem of the Senate, Sen. Patrick Leahy (D-VT) was presiding. After Reid's point of order, Leahy got the opinion of the parliamentarian, who advised Leahy that Reid was wrong. Leahy then formally ruled that Reid was wrong and could not bring up the nomination without 60 votes.

However, whenever the chair makes a decision on the rules, any senator can object and force the entire Senate to vote on the chair's decision. That happened and by a vote of 52 to 48, Leahy's decision was overturned, with all Republicans voting to support Leahy and all but three Democrats (Carl Levin, Mark Pryor, and Joe Manchin) voting to oppose him. Thus was Leahy's decision overturned and Reid got his way and could bring Millet's nomination to the floor with only 51 votes.

It may seem odd that on a critical vote, all the Republicans in the Senate voted to support the dean of the Democratic caucus, Patrick Leahy, and nearly all the Democrats opposed their Democratic colleague, but such is the nature of the Senate. This is why the job of Senate parliamentarian exists. Leahy could have ignored the parliamentarian's advice and said Reid was right but then minority leader Sen. Mitch McConnell (R-KY) would have objected and the Senate would still have voted, only with the Democrats supporting Leahy and the Republicans opposing him. Leahy probably ruled as he did to avoid having the Republicans accusing him of cheating.

Few Americans have a clue why an appointment to the D.C. Court of Appeals is so important. The reason is that that Court handles most cases involving the federal government and it currently has four Republican appointees, four Democratic appointees, and three vacancies. In theory, the losing party in a case involving the federal government can appeal to the U.S. Supreme Court, but the Supreme Court takes up fewer than 1% of these, so the D.C. Court of Appeals has the final say in over 99% of its cases. In addition, the D.C. Court of Appeals is the farm team for the Supreme Court. Justices John Roberts, Antonin Scalia, Clarence Thomas, and Ruth Bader Ginsburg all sat there before being promoted to the Supreme Court.

The three dissenting Democratic votes (that is, the votes supporting Leahy) are all different. Sen. Carl Levin (D-MI) has been in the Senate since 1979. He is retiring after this term but he has seen everything. In particular, he has seen situations in which a Republican President made nominations that he opposed and were defeated only by a Democratic filibuster. He wants to preserve that option in case a President Cruz or a President Rubio makes appointments the Democrats don't particularly care for. Sen. Mark Pryor (D-AR) is in the fight of his life in 2014 and the more distance he can put between himself and the national Democrats, the better it is for him. He saw his colleague, Blanche Lincoln, defeated in 2010 and is trying mightily to avoid that fate. Sen. Joe Manchin (D-WV) is a special case. First, he doesn't want to hurt the Democrats' chances of filling the seat of the retiring Sen. Jay Rockefeller (D-WV) next year. But also, he is sitting in the seat of the late senator Robert Byrd, the longest-serving member of Congress in history and a traditionalist who always carried a copy of the Constitution in his pocket. At least some of Manchin's motivation is surely to show respect for Byrd, who was immensely popular in West Virginia.

Since the Senate rules have not formally been changed, the Republicans can filibuster future appointees if they want to, but now that there is a precedent--and more importantly, 52 votes--any such attempt will be squelched immediately, so de facto, the rule has been changed without it really having been changed. Reid said the change would not apply to Supreme Court nominees. Don't bet the farm on it. If a Supreme Court vacancy occurs while Obama is President and the Republicans are in the minority in the Senate, they will surely try to filibuster the attempt to force a vote on the nominee. In that case, the Democrats will almost certainly repeat the procedure used for Millet although for the Supreme Court they might just force the Republicans to actually hold the floor and talk for a couple of weeks, something technically called "diaper time." In due course, the same thing might be done for legislation.

What are the political implications of what happened Thursday? The 2014 elections are nearly a year away and few people are likely to remember this and even fewer are likely to understand it. The Republicans will say the Democrats cheated and the Democrats will point to polls showing the popularity of Congress under 10% and say they were trying to fix it. It is doubtful that many votes will be swayed by all this, especially if there is a government shutdown next year or the U.S. defaults on its debt. Those are things people can understand.

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