Here’s a fun exercise: Who said the following?
“What they do not expect is for one party, be it Republican or Democrat, to change the rules in the middle of the game so they can make all the decisions while the other party is told to sit down and keep quiet.”
That was Senate Minority Leader Mitch McConnell Thursday just before Democrats voted to change the Senate procedure to “majority rule” for executive branch and judicial nominees, right?
Wrong. That was, in fact, Sen. Barack Obama (D-IL) back in 2005 in a speech on the Senate floor arguing against the so-called “nuclear option,” in which just 51 votes, not 60 would be needed to invoke cloture and end a filibuster for nominees.
Obama added, “I sense that talk of the nuclear option is more about power than about fairness.”
Let’s try another:
“I think the president is entitled to an up-or-down--that is simple majority--vote on nominations, both to his Cabinet and to the executive branch and also to the judiciary. The filibuster was not used for 200 years. The country did just fine. Sometimes the court would jag off to the left, and sometimes it would slide over to the right. Presidents trying to mold the Supreme Court is nothing new. It's not inappropriate. And we need to get back to tradition, and the tradition is a majority is enough to confirm a judge.”
Senate Majority Leader Harry Reid (D-NV)? Nope. That was McConnell, as majority whip in 2005, arguing on CNBC in favor of the “nuclear option.”
Here’s another for fun from McConnell 2005:
“What typically happens is we exercise self-restraint, and we do not engage in that kind of behavior because invoking certain obstructionist tactics would upset the Senate's unwritten rules.”
He said that in a Senate floor speech, in which he also even invoked the majority party’s “constitutional authority” to change the rules “by a simple majority vote.”
It’s that lack of “self-restraint” among Republicans using “obstructionist tactics” during Obama’s presidency that Democrats point to for their – and the president’s – change of heart.
According to our count, there have been 81 cloture motions – attempts at defeating a filibuster – during Obama’s presidency.
In fact, that is more cloture motions in just Obama’s five years in office than in all previous years combined since filibusters of judicial and executive branch nominees began in 1968. Prior to Obama, cloture was invoked 68 times total. Here it is, by president:
Bush 41: 1
Bush 43: 38
SOURCES: Congressional Research Service, U.S. Senate
Republicans would point out, cloture motions were ultimately rejected more often during the most contentious years of the Bush presidency than during the first four years of Obama’s presidency.
In 2003-2004, during the big fight over Bush nominees, 11 cloture attempts (80 percent) on judicial or executive nominees were rejected. Compare that to just three between 2009-2012.
But six more Obama nominees were rejected just since the beginning of this year – after the president’s reelection. And many of the previous Obama nominees were withdrawn rather than being voted on for certain defeat.
A little history: Until 1949, cloture could not be moved on nominations. It happened for the first time in 1968, for Abe Fortas, whose nomination to become Chief Justice was withdrawn after the Senate failed to invoke cloture. In fact, it was so rare, it was only used 11 more times until 1992. In 1975, the threshold for overcoming a filibuster was downgraded from 67 votes, or two-thirds majority, to 60 where it stands today.
Democrats thought they had a handshake deal with McConnell in January to only filibuster nominees in “extraordinary circumstances.”
But they see what happened with the president’s last three picks for the DC Circuit Court being rejected – not even based on qualifications, ethics, or cronyism – as breaking that deal. That’s what ultimately led Democrats like Dianne Feinstein of California, Max Baucus of Montana, and Claire McCaskill of Missouri, who had previously been concerned with going this route, off the fence.
It’s also why congressional scholar Norm Ornstein puts the blame for what happened Thursday squarely on McConnell.
“This was an in-your-face, go-ahead-I-dare-you equivalent of a bully saying, ‘Go ahead and hit me,’” Ornstein said. “When the other kid says, ‘No,’ you spit in his face, kick him in the groin and force him to go ahead and do it.”