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"Nuclear Option" would take away right of Minority Part to Filibuster in Senate; Senate to Debate "Nuclear Option" Now

Aired November 21, 2013 - 10:30   ET


DANA BASH, CNN CHIEF CONGRESSIONAL CORRESPONDENT: Republicans are bracing for it. The top two Senate Republicans just went on to the senate floor. Our Senate producer Ted Barrett saw them, talked to John Cornyn, the number two Senate Republican, who said that they do think the Democrats are going to push this. Of course, they think it's unfortunate.

They argue that Democrats are -- are not accurate, that these -- that these times are not different than before, that Republicans are not holding up presidential appointments any more than Democrats did when President Bush, for example, was in the White House.

CHRISTINE ROMANS, CNN ANCHOR: So Dana, some Senate Democrats they have been hesitant to use -- I mean the reason it's called the "Nuclear Option" is once you do it, you can't go back. Right? So they've -- they've been hesitant to use this in the past. So what is the tipping point today?

BASH: What the major tipping point is -- is there is a court of appeals, a very important one, the D.C. Circuit, it is called, which tends to hear a lot of the appeals to laws that Congress passes.

So it's sort of near and dear to Congress' heart. Right now there are three vacancies on that court and the people, the judges who are currently on the bench are pretty much evenly divided by Democratic appointees and Republican appointees.

The president has been trying to fill the three vacancies and Republicans have been blocking those nominees not necessarily because of the qualifications of the nominees. But because of the fact that they say, that they're pretty honest about the fact that they don't want the makeup of that court to change and they argue that there is much more of a need in other courts to fill the bench than in this particular court. They say the workload is light and they argue that Democrats are manufacturing this crisis because of the fact that they want to change the subject away from Obamacare.

That we're talking about this, we're talking about Republicans blocking -- blocking the president's nominees and not about Obamacare.

JOHN BERMAN, CNN ANCHOR: All right, CNN's chief congressional correspondent Dana Bash for us on Capitol Hill. Dana of course, stick around because this is developing over the next few minutes. We'll need updates from you as they come in. Joining us now to discuss this is CNN political commentator and Republican strategist Ana Navarro and CNN senior political analyst and editorial director for the National Journal Ron Brownstein.

Ron, I've got to say, this has not been a banner year for playing nice in Washington.


BERMAN: I think Democrats would say this vote is a result of the not playing the nice, and Republicans will say it will only make the not playing nice even worse. Which is it, or is it both?

BROWNSTEIN: It's both. And I think we can say it is not been a decade or two for playing nice in Washington. Look whether this happens today or tomorrow, John, I think it is inevitable that the filibuster gets retrenched and rolled back over time. It is simply incompatible with the way Washington work today.

The political scientists who study these things will tell you that we are today experiencing the highest level of party-line voting in the history of Congress, Republicans voting with Republicans, Democrats voting with Democrats.

And when each party lines up in that kind of quasi-parliamentary system where the whole team votes on one side against the whole team on the other side, the idea of a super-majority I think is an anachronism. And we may not change it today but I think over time, the majority party just isn't going to stand for this kind of -- you know this kind of road blocking that we're seeing on these judicial nominees on the appellate court.


ANA NAVARRO, CNN POLITICAL COMMENTATOR: You know, frankly, it's going to be one more nail in the coffin of bipartisanship it's going to be one more nail in the coffin of civility and committee in Washington. I don't think it's a constructive move.

I agree with what Ron is saying, it is a manifestation of Washington today and that lack of bipartisanship and of being able to get things done in a bipartisan way. We are just seeing with Obamacare what doing things with just one party can mean, it means that an entire section of the country is not represented.

And look big, difficult, complex issues should be done in a bipartisan manner. I hope that they work it out. We've been on the brink of a nuclear option times before. I hope that this gets worked out before they pull that trigger. And Democrats should remember that what goes around comes around.

BERMAN: And that's the message.

NAVARRO: They're not going to be in the majority the entire time. This could come back to bite them. BERMAN: And this -- that is the message I think a lot of Republicans are sending right now. And right now it really does seem we are in defcon 1, to use some nuclear terminology here. Sit tight, guys. I think Dana Bash has some news for us Dana on Capitol Hill. What do you have?

BASH: We just have some more information about how we now understand this is going to go down this morning and this is by way of our senate producer Ted Barrett.

First of all, Senator Reid will speak on this issue, Senator McConnell the Republican leader will speak on the issue. And then here's what's going to happen the Democratic Leader, Harry Reid, will move to reconsider the nomination of one of those judges I was telling you about that Republicans have been blocking, Patricia Mallette (ph). So that is going to be the first vote, just on a motion to reconsider that nomination.

Then there're going to be another vote to actually reconsider that nomination. So you're going to see two votes on a judge that has already been blocked by Republicans and they will likely fail because again Republicans have the 60 votes to keep their filibuster of this -- of this nomination going.

Then what we're going to likely see is Harry Reid appeal to the chair and say that he would like to change the rules so that this nominee can -- and others can get passed with only a simple majority -- 51 votes. The expectation is that the rule will say that that is not in order and say that's not allowed.

But then what Harry Reid is going to do is call for a Senate vote to change the rules. So what you're going to see then is a Senate vote, which only requires a simple majority, 51 votes, to change the rules to prevent Republicans from filibustering this and other judges and other nominees.

BERMAN: All right. It could be high drama and it could unfold within the next few minutes. So Dana Bash, Ana Navarro, Ron Brownstein, thanks for being with us.

Stick around we're going to follow this as it unfolds throughout the morning. Stay with us. We'll be right back.


ROMANS: All right we're going to take a look at Senator Harry Reid, Senate Majority Leader Harry Reid on the floor of the Senate, he's -- all have been asked to come at 10:30 to talk about the so-called "Nuclear Option". Let's listen to him for a moment.

SEN. HARRY REID (D), MAJORITY LEADER: -- 50 percent. Is there anything fair about that? These nominees deserve at least an up or down vote. Yes or no. But Republican filibusters deny them a fair vote. Any vote and deny the president his team. Gridlock has consequences and they're terrible. It's not only bad for President Obama, bad for this body, the United States Senate, it's bad for our country. It's bad for our national security and bad for economic security. That's why it's time to get the Senate working again. Not for the good of the current Democratic majority or some future Republican majority but for the good of the United States of America.

It's time to change. It's time to change the Senate before this institution becomes obsolete. Mr. President, at the beginning of this Congress, the Republican leader pledged that -- and I quote -- "This Congress should be more bipartisan than last Congress."

Mr. President, we're told in scripture -- let's take, for example, Old Testament. The Book of Numbers: "Promises, pledges, a vow. One must not break his word." In January, Republicans promised to work with the majority to process nominations in a timely manner by unanimous consent except in extraordinary circumstances.

Mr. President, exactly three weeks later, Republicans mounted a first in history filibuster of a highly qualified nominee for Secretary of Defense. Despite being a former Republican senator, a decorated war hero, having saved his brother's life in Vietnam, Defense Secretary Chuck Hagel's nomination was pending in the Senate for a record 34 days, more than three times the previous average of secretary of defense.

Remember, Mr. President, our country was at war. Republicans have blocked executive nominees like Secretary Hagel not because they object to the qualifications, but simply because they seek to undermine the very government in which they were elected to serve.

Take the nomination of Richard Cordray to lead the Consumer Financial Protection Bureau. There was no doubt about his ability to do the job. But the Consumer Financial Protection Bureau, the brainchild of Elizabeth Warren, went for more than two years without a leader because Republicans refused to accept the law of the land, because they wanted to roll back a law that protects consumers from the greed of Wall Street.

So I say to my Republican colleagues, you don't have to like the laws of the land but you do have to respect those laws and acknowledge them and abide by them. Similar obstruction continued unabated for seven more months until Democrats threatened to change Senate rules to allow up or down votes on executive nominations.

In July, after obstructing dozens of executive nominees for months and some for years, Republicans once again promised they would end the unprecedented obstruction. One look at the Senate's executive counter shows that nothing has changed since July. Republicans have continued their record of obstruction as if no agreement had been reached. Republicans have continued their record of obstruction as if no agreement had been reached. There are currently 75 executive branch nominations ready to be confirmed by the Senate and been waiting an average of 140 days for confirmation.

One executive nominee to the agency that safeguards the water that my children and my grandchildren drink and air they breathe has waited almost 900 days for confirmation. We agreed in July that the Senate should be confirming nominees to ensure the proper functioning of government.

Consistent and unprecedented obstruction by the Republican caucus has turned advice and consent into deny and obstruct. In addition to filibustering a nominee for Secretary of Defense for the first time in history, Senate Republicans also blocked a sitting member of Congress from an administration position for the first time since 1843.

As a senior member of the House Financial Service Committee, Congressman Mel Watts understanding of the mistakes led to the housing crisis made him uniquely qualified to serve as administrator of the Federal Housing Finance Agency. Senate Republicans simply don't like the consumer protections Congressman Watt was nominated to develop and implement. So they denied a fellow member of Congress and a graduate of the Yale School of Law even the courtesy of an up or down vote.

Mr. President, in the last three weeks alone, the Republicans have blocked up or down votes on three highly qualified nominees to the Circuit Court of appeals. This doesn't take into consideration they twice turned down one of the most qualified people in my 30 years in the Senate that I've ever seen come before this body, Kaitlyn Holigan. So we have three more to add to that list.

The D.C. Circuit is considered by many to be the highest court of the land and some think maybe the most important. Deals with these complex cases -- they come from federal agencies and other things within their jurisdiction. Republicans have blocked four of President Obama's five nominees to the D.C. Circuit whereas Democrats approved four President Bush's six nominations to this important court.

Today the D.C. Circuit court, at least this second-most important court in the land, has more than 25 percent in vacancies. There isn't a single -- I ask -- Mr. President, I ask -- there's a conversation over here that's quite distracting.

UNIDENTIFIED MALE: The Senate will be in order.

REID: Thank you.

UNIDENTIFIED MALE: The senator has a right to be heard.

REID: Mr. President, there isn't a single legitimate objection to the qualifications of any of these nominees to the D.C. Circuit that President Obama has put forward. Republicans have refused to give an up or down vote, a simple yes or no vote.

Republicans simply don't want President Obama to make any appointments at all to this vital court -- none. Zero. Further, only 23 district court nominations have been filibustered in the entire history of our country, 23. You know what? 20 of them have been in the last four and a half years -- 230 plus years -- three, last four and a half years, 20. That's not fair. With one out of every 10 federal judgeships vacant, millions of Americans will rely on courts that are overworked and understaffed are being denied the justice they rightly deserve.

Mr. President, more than half of the nation's population lives in parts of the country that have been declared a judicial emergency. No one has worked harder than the presiding officer to move judges. The presiding officer is the chairman also of the judiciary committee. No one knows the problem more than the presiding officer.

Mr. President, the American people are fed up with this kind of obstruction and gridlock. The American people -- Democrats, Republicans, Independents -- are fed up with this gridlock, this obstruction. The American people want Washington to work for American families once again.

Mr. President, I'm on their side, which is why I propose an important change to the rules of the United States Senate. The present Republican leader himself said -- and this is a direct quote -- "The Senate repeatedly has changed its rules as circumstances dictate." Close quote. He's right. In fact, the Senate has changed its rules 18 times by sustaining or overturning the ruling of a presiding officer in the last 36 years during the tenures of both Republican and Democratic majorities.

The change we propose today would ensure executive and judicial nominations, an up or down vote on confirmation. Yes, no. The rule change will make cloture for all nominations other than the Supreme Court majority threshold vote, yes or no. The Senate is a living thing. And to survive, it must change, as it has over the history of this great country.

To the average American, adapting the rules to make the Senate work again is just common sense. This is not about Democrats versus Republicans. This is about making Washington work regardless of who is in the White House or who controls the Senate. To remain relevant and effective as an institution, the Senate must evolve to meet the challenges of this modern era.

I have no doubt my Republican colleagues will argue the fault is ours -- it's the Democrats' fault. I can say from experience that no one's hands are entirely clean on this issue. But today the important distinction is not between Democrats or Republicans. It is between those who are willing to help break the gridlock in Washington and those who defend the status quo.

Is the Senate working now? Can anyone say the Senate is working now? I don't think so. Today, Democrats and Republicans are saying enough is enough.

To change the rules regarding presidential nominees will apply equally to both parties. When Republicans are in power, these changes will apply to them just as well. That, Mr. President, is simple fairness and it's something both sides should be willing to live with to make Washington work again. That's simple fantasy.


UNIDENTIFIED MALE: The clerk will call the role. ROMANS: All right. We've been listening to the Senate Majority Leader Harry Reid proposing this filibuster nuclear option and you've got the senators there on the floor.

Let's bring in Dana Bash, who has been following this for us all morning. Bring us up to speed where we stand now Dana.

BASH: Well, he just laid out what we knew was coming. Certainly as of this morning, we knew that it was very likely. He laid out that he's going to make the move to change the rules.

You know what -- forgive me. I'm hear that the Republican leader is going to respond. Let me know if you want to go to Mitch McConnell.

BERMAN: When he gets going, if we hear him, we will stop. Let's listen to Senate Minority Leader Mitch McConnell.

SEN. MITCH MCCONNELL (R), MINORITY LEADER: Talking about a website. I'm talking about the way in which Obamacare was forced on the public by an administration and a Democratic led Congress that we now know was willing to do and say anything, anything to pass the law.

The president and his Democratic allies were so determined to force their vision of health care on the public that they assured them up and down that they wouldn't lose the plans they had, that they save money instead of losing it, and that they would be able to use the doctors and hospitals they were already using.

But of course, we know that that rhetoric just doesn't match reality. And the stories we are hearing on a nearly daily basis now range from heartbreaking to comic. Just yesterday, I saw a story about a guy getting a letter in the mail saying his dog -- his dog had qualified for insurance under Obamacare.

So yes, I would probably be running for the exit, too, if I supported this law. I would be looking to change the subject. Change the subject. Just as Senate Democrats have been doing with their threats of going nuclear and changing Senate rules on nominations.

If I were a senator from Oregon, for example, which hasn't enrolled a single person -- a single person for the Obamacare exchange, I would probably want to talk about something else, too.

But here is the problem with this latest distraction. It doesn't distract people from Obamacare. It reminds them of Obamacare. It reminds them of all the broken promises. It reminds them of the power grab. It reminds them of the way Democrats have set up one set of rules for themselves and another for everybody else. One set of rules for them and another for everybody else.

Actually, this is all basically the same debate. And rather than distract people from Obamacare, it only reinforces the narrative of a party that is willing to do and say just about anything to get its way. Willing to do or say just about anything to get its way because that's just what they're doing all over again. Once again, Senate Democrats are threatening to break the rules of the Senate, break the rules of the Senate in order to change the rules of the Senate. And over what? Over what? Over a court that doesn't even have enough work to do.

Millions of Americans are hurting because of a law Washington Democrats forced upon them. And what do they do about it? They cook up some fake fight over judges -- a fake fight over judges that aren't even needed.

Look, I get it. As I indicated, I want to be talking about something else, too. If I had to defend dogs getting insurance while millions of Americans lost theirs. But it won't work. And the parallels between this latest skirmish and the original Obamacare push are just too obvious to ignore. Think about it. Just think about it.

The majority leader promised -- he promised over and over again that he wouldn't break the rules of the Senate in order to change them. This is not an ancient promise. July 14th on "Meet the Press" he said we're not touching judges. This year, July 14th, "Meet the Press", we're not touching judges. Then there are the double standards.

When Democrats were in the minority, they argued strenuously for the very things they now say we will have to do without -- namely, the right to extend a debate on lifetime appointments. In other words, they believe that one set of rules should apply to them, to them and another set to everybody else. He may just as well have said if you like the rules of the Senate, you can keep them.

BERMAN: All right. You've been listening to Senate Minority Leader Mitch McConnell right now. There is a whole lot going on the floor of the Senate floor right now.

ROMANS: Oh, yes.

BERMAN: Up for debate right now is the so-called nuclear option, changing rules for filibustering nominees to key positions in the judiciary and the administration. That was proposed by Senate majority leader, Harry Reid. You are now getting a response from minority leader, Mitch McConnell who wasted no time bringing up actually Obamacare, which was not exactly the subject that Harry Reid started with today. But I think it's a sign of things to come in the Senate for some time.

Let's go right to Dana Bash right now for her reaction to this -- Dana.

BASH: Well, the reason Mitch McConnell brought up Obamacare is because of the argument he was just making. Republicans have been saying this to us for weeks, that if the Democrats make this move, trigger the nuclear option, it is for one reason and one reason only -- because they want to distract from this enormous political problem that they have on Obamacare. And you just heard Mitch McConnell say it right there. He believes that this is a fake fight and that this is not fair, it's a double standard and so on and so on. Of course, before he spoke, Harry Reid made the point, going through some of the statistics, some of the numbers of nominees that are held up currently as we speak from the administration -- I believe 75 are sitting on the calendar right now -- saying that that is unfair and people in the administration need to have the personnel in order for the government to function. It is a basic question of whether or not the government can function for the people. And they can't if they don't have the personnel there.

He also addressed the fairness issue. Harry Reid saying that he understands that if and when these rules change, meaning part of it that's in the minority now, the Republicans, are stripped of their ability to filibuster, stripped of their ability to hold up a President's nominees that if and when Democrats are in the minority and there's a Republican in the White House, they are going to have to live by those same rules. That is something he said on the Senate floor and that is something that is going to come back to haunt them.

ROMANS: And the irony, Dana Bash, is that quite frankly something that they want to do to, I guess, break this lack of partisanship would only make this lack of partisanship even worse.

BASH: That's exactly right.

ROMANS: Dana Bash, thank you for all your -- go ahead.

It certainly seems like something to come.

BERMAN: We will pick off this discussion. CNN's coverage of this will continue throughout the day, including on "LEGAL VIEW" with Ashleigh Banfield, which begins right now.

ASHLEIGH BANFIELD, CNN HOST: Hello, everyone. I'm Ashleigh Banfield. It is Thursday, November 21st. Welcome to "LEGAL VIEW". Hi.

Drama on Capitol Hill this morning with consequences that could be felt for decades. Senate majority leader Harry Reid and other senior Democrats say they have simply had enough of Republican filibuster threats. And they're invoking what is known as the nuclear option. It would dramatically alter Senate rules to allow just 51 votes, a simple majority to overcome a filibuster. Let's listen in to Senator McConnell as he continues to make his case.

MCCONNELL: Judicial nominees, he's effectively changing them for all judicial nominees, including the Supreme Court, as Senator Grassley pointed out just yesterday. So look, I realize this sort of wishful thinking might appeal to the uninitiated newcomers in the Democratic conference who have served exactly zero days in the minority, but the rest of you guys in the conference should know better. Those of you who have been in the minority before should know better.

Let's remember how we got here. Let's remember that it was Senate Democrats, who pioneered literally pioneered, the practice of filibustering circuit court nominees.