Oregon Sen. Jeff Merkley is generally recognized as the prime mover beyond filibuster reform in 2013. Elected in 2008, lacking a strong foe in 2014, Merkley has repeatedly urged Democrats to roll back the filibuster rules that have let 41 senators block any nominee. Today, as Democrats looked toward two more possible filibusters of nominees to the D.C. Circuit, I asked Merkley how it all looked.
Dave Weigel: Have other Democrats started talking yet about revisiting filibuster reform?
Jeff Merkley: There’ll be an intense conversation about executive branch nominations. The understanding at the start of this year, expressed—I think I have this nearly word for word—in a promise from Mitch McConnell, was to return to the norms and traditions of the U.S. Senate regarding nominations. That promise wasn’t fulfilled, but that was a promise on executive and judicial nominations. That led to the fight in July, with 51 senators standing behind Harry Reid, because executive branch nominees deserve an up-or-down vote in advise and consent.
That understanding was disrupted with the failure to get an up-or-down vote on Mel Watt. So we’ll be returning to that piece. You go to the judicial nominees and, certainly, it cannot be the case that one president, one party, gets up-or-down votes on his or her nominees, and the president of the other party does not get up-or-down votes. This battle was fought in 2005, when my Republican colleagues were in charge, and they said there have to be up-and-down judicial votes, or we will change the rules, kind of the reverse image of what happened in July.
DW: One of the nominees confirmed by that deal wrote last week’s conscience clause ruling, too.
JM: Yes. This has not escaped anyone’s attention. I’m confident there will be an intense effort to address this issue. I’ll leave it to the leadership to develop the plans. I’m certainly going to be advocating that we cannot have advise and consent be a tool with which a minority of one house of a legislative branch does deep damage to the other coequal branches of government. They’re not coequal if one branch can undermine the other two.
DW: But do you lose votes on this, between the Democrats who are OK with up-or-down votes on short-term nominees but not with those votes on lifetime judicial appointments?
JM: There has been a concern that some members have expressed that when they think of executive nominees, they think two to four years. When they think of judges, they think lifetime. They’d like to retain the ability to block really terrible judges in the future. I would respond to that by saying this issue was resolved in 2005, when we did block some very bad nominees, but the response from our Republican colleagues was you must stop, or we’ll change the rules to a simple majority. The Gang of 14 said, yes, there will be no more blockade accepted except under extraordinary circumstances. And there’ve been no scandals on these nominees. The standard insisted on by my Republican colleagues has unfortunately not been honored.
DW: Well, are you worried about giving these judges up-or-down votes, and then finding yourself and 48 Democrats in the minority unable to stop a judge?
JM: I don’t worry about that in this sense. I know that if there is a Republican president and a Republican majority, they will force up-and-down votes because they demonstrated their committment to that principle in 2005. There is, in a democracy, power that goes with the voice of the people. When people elect a president, there are electing him for his nominating powers as well as his management.
