'It’s more important that we have our nominees now,' Sen. Barbara Mikulski said. Abortion emerges as filibuster issue

As Democrats consider whether to use the so-called nuclear option to rewrite the Senate’s filibuster rules, one issue in particular has some liberals worried: abortion.

Changing the rules to make it easier to confirm President Barack Obama’s executive branch or judicial appointments may help the White House in the short term, and railing against Republican filibusters plays well with the Democratic base. But privately, that base and abortion rights supporters are concerned how a future GOP president and Senate could take advantage of the new setup.


One Democratic aide described abortion rights groups as “wary of using the nuclear option to lower the threshold to 50 votes for judges because they’re afraid of what it could mean for women’s health,” although no group would go on the record, citing sensitive congressional negotiations. And several Democratic senators agreed the future of abortion rights is one of the top concerns for the party in the fight over rules.

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Sen. Barbara Mikulski (D-Md.) said the concerns over women’s rights are “valid,” but she said now is the time to set up Obama to govern, not to try to outflank a hypothetical Republican Washington.

“There’s always a reason not to do something,” Mikulski told POLITICO. “It’s more important that we have our nominees now. We have a president that we know until 2016.”

Sen. Jeff Merkley (D-Ore.), who co-authored a filibuster rules proposal with Sens. Tom Harkin (D-Iowa) and Tom Udall (D-N.M.), said fears over conservative judges being nominated by a future Republican president are a top concern of his colleagues. Merkley’s proposal would address only executive branch nominations, not judicial nominees.

“Advise and consent cannot become a tool used to undermine other branches of government,” Merkley said. “It wasn’t part of the filibuster reform I put forward, but I would be comfortable supporting it.”

Other Democratic senators said the GOP would most likely rewrite the rules of the Senate anyway if they were to retake the chamber, so there’s no point in holding back now in fear of revenge.

“I don’t think it’s a question of retribution from them if we do it. I think they will do it whether or not we do,” said Sen. Sherrod Brown (D-Ohio).

“If you get a Republican president, you’re going to get pro-life nominees. I mean, elections have consequences,” said another Democratic senator, who declined to speak on the record.

As Republicans are able to prevent or delay votes on Obama nominees, Majority Leader Harry Reid (D-Nev.) has threatened to use the nuclear option to speed things up. Simply put, the Senate would vote by a simple majority to prohibit filibusters on certain types of nominations — bringing the threshold to 50 votes rather than the 60 needed to break a filibuster.

The idea has popped up more and more as both parties — when in the minority — embrace the filibuster and its 60-vote bar to slow the agenda for the majority. Republicans threatened to use it when Democrats blocked George W. Bush judicial nominees in 2005, and Democrats considered using it when the Senate came back this January.

Obama’s nomination of three judges to the U.S. Court of Appeals for the District of Columbia Circuit this week could add to the drama if Republicans block a vote.

If he were to bring up the nuclear option, most expect Reid to use the Merkley-Harkin-Udall approach and focus on executive branch posts like EPA administrator, rather than using the option for judicial nominations. But given the way the Senate operates on precedent, aides in both parties say any rules change could spark an era in which the majority party can rewrite the rules at will — including for judges.

Reid must still accrue 51 senators to change the rules — not a sure bet given skepticism from fellow Democrats, especially veterans such as Sens. Max Baucus of Montana, Jay Rockefeller of West Virginia and Carl Levin of Michigan, who have served in both the majority and minority. Levin and Sen. John McCain (R-Ariz.) led a compromise early this year to avoid the nuclear option by instituting more modest reforms.

The majority leader hasn’t said what he will do or when he will do it, although any action probably would have to wait until the Senate handles the increasingly touchy immigration bill. On Tuesday, Reid declined to engage Minority Leader Mitch McConnell on the topic even after McConnell said he was going to come to the floor every day to ask if Reid would “keep his word” from January on avoiding a rules change.

“The ball is in their court. I’m not going to be talking about it. He can come to the floor and talk 15 times a day,” Reid said of McConnell.

Republicans say nuclear option talk is cynical and they champion the attributes of the Senate that make it so different from the House. Sen. Richard Burr (R-N.C.) said changing the rules to allow stronger rule by the majority would essentially invalidate the existence of the Senate.

“I’d be just as scared that a Republican administration be unchecked as I would a Democrat [administration]. I don’t think it’s healthy for either side not to have the rules that are in existence now,” Burr said, noting his comments were coming from a “guy who spent 10 years in the House cussing the United States Senate.”

Sen. Tim Scott (R-S.C.), who recently made the leap from the House to the upper chamber, admitted his perspective might be different if he were serving in the majority. But he said, “unintended consequences” would come back on the Democrats if they move forward with rules changes. Sen. Dan Coats (R-Ind.) was more forceful.

“It would be a tragic mistake on their part and something they would regret. You always have to think about what life would be like in the minority,” Coats said, adding that Republicans confirming conservative judicial nominees is “just one” of the nuclear option’s consequences.

Those consequences are simply part of the risks of elected life, said Harkin: “Democracy is inherently dangerous, and we accept that in order to live in a democracy, OK?”