Kevin Lamarque/Reuters/File
President Obama announces three nominees, including Patricia Millett (r.), to fill vacancies on the United States Court of Appeals for the District of Columbia in Washington this June. Judge Millett is expected to be confirmed Monday after the 'nuclear option' ended Republicans' ability to filibuster her nomination.

Is Harry Reid fueling Senate's escalating 'arms war'?

The Senate is expected to confirm an Obama judicial nominee with a simple majority as Democrats take advantage of rules changed by the 'nuclear option.' But Republicans weren't the only ones using Senate rules to obstruct.

[Updated 4:41 p.m.] Senators are returning from their Thanksgiving recess to an altered political battlefield on Capitol Hill. After Democrats exercised the so-called “nuclear option” last month, will Republicans launch a retaliation?

One test will come Tuesday as Democrats are expected to use the new rules to confirm one of President Obama’s judicial appointments, Patricia Millett, by a simple majority vote. Before the nuclear option, Republicans could (and did) block President Obama's nominees – including Judge Millett – by a filibuster, which requires 60 votes to overcome. But that hurdle is now blasted to bits, and Democrats plan to move forward on five other key Obama nominations before Christmas.

Even without the filibuster, however, Republicans can still do plenty to gum up the works. For instance, they can continue to use the filibuster on legislation, or require the clerk to read aloud lengthy bills and amendments, among other options.

Julian Zelizer, a congressional historian at Princeton University, thinks Republicans will shy away from such options. If Republicans engage in any serious payback, Democrats could counter by doing away with the filibuster entirely.

But the detonation of the nuclear option last month was only the most dramatic episode of an escalating "arms war" in the Senate, Professor Zelizer suggests.

Majority leader Harry Reid (D) of Nevada has argued that unprecedented obstruction by the GOP forced him to nuke the filibuster. But Republican senators say that Senator Reid is the chief obstructionist, consistently denying them the chance to amend bills – and thus to debate, which is a vital Senate function.

How does Reid do this? By a maneuver called “filling the amendment tree.” Reid uses the privilege of being majority leader to offer amendment after amendment until the slots for amendments on a piece of legislation are all filled with ones from only his party. A fight over amendments has bogged down the massive Defense bill.

The first recorded use of this tactic was by majority leader Robert Dole (R) of Kansas in 1985, but it was employed sparingly until 2005. During the 109th Congress of 2005 and 2006, majority leader Bill Frist (R) of Tennessee expanded it by blocking Democratic amendments nine times. Reid has taken the practice to new heights, using it routinely – 58 times as of April 2012, according to Brian Darling, a senior fellow at the conservative Heritage Foundation. He bases his count on reporting by the independent Congressional Research Service and updates from Senate Republicans and their staff.

Reid defends the practice as a protection from GOP amendments that seek to gut legislation, rather than improve it. But “filling the tree” has severely impacted the right of senators to offer amendments, and it has limited debate, both core activities of the Senate as envisioned by the Founding Fathers.

It also fueled the Senate's arms race, causing Republicans to turn ever more to filibuster as a way to delay action and allow for debate.

On the day that Reid moved to do away with the filibuster for all nominees except the Supreme Court, Sen. Jeff Sessions (R) of Alabama took to the floor to deliver an impassioned history lesson on Reid’s “suppression” of senators’ rights.  

“So Senator Reid fills the tree,” he said, and a spectacle ensues of senators, “hat in hand, bowing before the majority leader, pleading that he allow them to have their amendment up for a vote.” It is not right, he concluded, “and we are going to have to stop it.”

Is disarmament possible in the Senate?

Reid and Senate minority leader Mitch McConnell (R) reached ceasefires on both "filling the tree" and the filibuster in the past. But that hasn't stopped the arms race or accusations.

Ultimately, Zelizer says, “the issue is much broader than Reid.” It’s about “political polarization” and the “frustration of the GOP in the Senate.”

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