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Democrats Go ‘Nuclear,’ Eliminate Filibusters on Most Nominees (Update)

Updated 1:22 p.m. | Senate Democrats succeeded Thursday in deploying the “nuclear option” to make the most fundamental change to floor operations in almost four decades, ending the minority’s ability to kill most presidential nominations by filibuster.

The Senate voted, 52-48, to effectively change the rules by rejecting the opinion of the presiding officer that a supermajority is required to limit debate, or invoke cloture, on executive branch nominees and those for seats on federal courts short of the Supreme Court.

Three Democrats — Carl Levin of Michigan, Joe Manchin III of West Virginia, and Mark Pryor of Arkansas — voted to keep the rules unchanged.

The move came after Majority Leader Harry Reid, D-Nev., raised a point of order that only a majority of senators were required to break filibusters of such nominees. Presiding over the Senate as president pro tem, Judiciary Chairman Patrick J. Leahy of Vermont issued a ruling in line with past precedent, saying that 60 votes were required. Leahy personally supported making the change.

Voting against Leahy’s ruling has the effect of changing the rules to require only a simple majority for most nominations.

The new precedent represents what’s likely to prove the most significant change in Senate rules since 1975, when the cloture threshold was reduced to 60 votes in most cases (from two-thirds of senators present and voting).

“The Senate is a living thing. And to survive, it must change. To the average American, adapting the rules to make Congress work again is just common sense. This is not about Democrats versus Republicans,” Reid said opening the Senate. “This is about making Washington work — regardless of who’s 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 a modern era.”

Vice President Joseph R. Biden Jr., once a longtime Delaware senator, who previously said that he was open to changing the filibuster rules, told reporters traveling with him to a D.C. sandwich shop Thursday that he was on board with Reid’s move.

Sen. Jeff Merkley had been leading what was initially an uphill effort to change the way the Senate handles filibuster threats. The Oregon Democrat told reporters after the key vote that he didn’t think there was anything Republicans could do to un-ring the bell.

“The Senate has spoken,” Merkley said. “It has said we have tried to restore, through mutual understanding, the norms and traditions of the Senate time and time again, and each time the minority has failed to uphold its position.”

“Ending the abusive filibuster on nominations is a big step toward restoring the functionality of the Senate, and that matters for all of us. I hope we continue to look at ways to make this legislative body work better. We face big challenges as a nation, and we need a Congress that can take on those challenges,” Merkley said in a statement.

Minority Leader Mitch McConnell offered a prelude of what Reid and Democrats might experience in a “post-nuclear” Senate. There’s no shortage of procedural maneuvers available to delay Senate business both on the floor and at the committee level.

The Kentucky Republican led his conference in forcing a number of roll call votes on generally noncontroversial procedural motions. He also made a motion to adjourn.

“If they want to play games and set yet another precedent that they will no doubt come to regret, well … that’s a choice only they can make,” McConnell said earlier in the day.

Sen. John McCain told reporters he spent about an hour in Reid’s office Wednesday trying to figure out a way to once again avert the “nuclear option.” The Arizona Republican said it would “chill” other Senate business, including progress on a disability treaty.

“I’m very sad. I’m not angry. I’m just sad,” McCain said.

Asked about why the threats came to a head Thursday, Sen. Lindsey Graham, R-S.C., couldn’t really explain it, though he noted the disagreement about the D.C. Circuit Court of Appeals that dates back to the George W. Bush administration.

“The D.C. circuit — that fight’s been going on for 10 years, packing the court. There’s nothing new about this debate,” said Graham. “Sen. Leahy raised the same objections when Bush was in. I don’t know. Maybe it is Obamacare. Maybe they do want to change the topic. I can’t explain it in terms of substance.”

The new reality will allow Democrats to advance nominees without Republican votes, but not without expending time and effort. The new rule was on display when the Senate voted, 55-43, to limit debate on the motion of Patricia Ann Millett to a seat on the D.C. appeals court. Until earlier in the day, that action would have required 60 votes.

Republican Whip John Cornyn of Texas made the distraction from health care argument in his own statement.

“The Democrats’ attempt to pivot at a time when we should be focused on protecting the American people from dropped health care coverage makes their true motives clear,” Cornyn said. “They will do anything to take the attention off the failure that is Obamacare, even if it means breaking the rules of the Senate in a raw exercise of partisan political power.”

Many top Democrats who previously wavered on rules changes by simple majority backed Reid, including Leahy.

“I have always believed in the Senate’s unique protection of the minority party, even when Democrats held a majority in the Senate,” Leahy said in a statement. “When the minority has stood in the way of progress, I have defended their rights and held to my belief that the best traditions of the Senate would win out; that the 100 of us who stand in the shoes of over 310 million Americans would do the right thing. That is why I have always looked skeptically at efforts to change the Senate rules.”

Levin was one of the three who remained opposed, however.

“In the short term, judges will be confirmed who should be confirmed,” he said. “But when the precedent is set that a majority can change the rules at will on judges, that precedent will be used to change the rules on consideration of legislation, and down the road, the hard-won protections and benefits for our people’s health and welfare will be less secure.”

Meredith Shiner contributed to this report.

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