you heard mitch mcconnell mentioned miguel estrada and robert bourque. a lot of this is recrimination on the part of republicans. right now there is a four-four balance. four nominations by democrats and four by republicans. if president obama is able to put one more person on the court, suddenly the balance will be five 'em democrdemocratic pln the board. when it comes to things like abortion, getting the full 11 members on the court, if barack obama can do that he will shape not only this court, but potentially he'll be teeing up people for the big one, for the supreme court. >> alahe, i want to pick up on what casey hunt said at the top here. what is the so-called nuclear option and the tone of washington moving forward? >> it will just get more and more intense, more partisan especially in the senate we're seeing the rollout of obama care has been a disaster for democrats and now you're seeing harry reid going to the floor and pushing for the rules change and the indication being that he has the 51 votes at the very least and he has a united democrat

we are going to let the president's chosen nominees go through, miguel estrada of course withdrew, but what we see in the process it's been common deered by the minority. and i think certainly the constitution does not suggest that 60 votes in the super majority is ryed for presidential judicial nominees. i think the confirmation process has been a microcosm of what is happening generally. where we are seeing a faction, really hold the rest of us hostage. and it is time for that to change. >> professor, do you share tonya's satisfaction at this decision? >> well, no, i don't. today is a sad day the the u.s. senate. it has started down the road to the abandonmentment of more than 200 years of the protection of the privileges of the minority. in the senate. and i don't have a problem -- i mean i agree that the filibuster has been abused in recent years. and specifically in terms of this rather blatant and transparent effort to block president obama's judicial nominations. and in fact in our book we proposed doing away with the filibuster for such nominations. but my problem is with the n

. >> speaking of the bush administration, you can think about miguel estrada, he's too extreme, can't the same rationale for republican senators to say obama's picks are too extreme for us? >> they could, except let's remember what really happened during the bush administration, which is that president bush, except for estrada and one or two others, got almost every single nominee blocked by the democrats on the bench at the end of the day. janice rogers brown on the d.c. circuit who just handed down that incredibly terrible decision on the con ttraceptive provision of affordable care. if you want extreme, there's your example. >> we heard harry reid talk about court packing. they are trying to court pack it. an interesting quote from mother joans nominating judges for ordinary form of vacancies is a disingenuous claim. there are only 8 people on court right now. so is it court packing to fill all of the seats? >> it's silly. it's so silly. you don't want to really give it the time of day to answer. but it's like saying i try to come up with any silly analogy. if i go on doubles court

senate democrats did to good people, a good judge would have been a great judge and a great lawyer miguel estrada, the way they treated him. remember the confirmation hearings of chief justice roberts and aleto. >> mrs. aleto cried. >> harry reid can talk about this. it's reality. won't happen. >> he's saying and patrick leahy is saying if the republicans filibuster these nominees, two in particular, patricia millett and robert wilkins and nina pillard. there are three. they are saying they will change the filibuster rules and deny the minority this tool in the u.s. senate. that would be a huge development, jay. >> it would be gigantic. it would cut against senate rules in history. the reality is with the senate democrats would have to realize when there is a republican president of the united states what are they going to do -- go back to the old rules? this is dangerous for the united states senate. the president, first of all, what's important here, the president's confirmation rate in just a few months will exceed what president bush got in his entire eight years in office. it's not like t no

sides over the years have tried to block mom nations, but if you compare it to bush, you had miguel estradawe have concerns about ideology, concerns about qualifications. in this case, it's simply the opposite of that. before names are even released, you have republican lawmakers who say they're not even willing to look at this. >> it's not about the nominations, about who's giving the nomination. >> it speaks to a much bigger problem within the party, whether that be obama care, immigration or nominees. we're just going to say no regardless of what it's about. and you become the party of no. and how do you advance society if you just stand for nothing? >> you know, what bothers me is the ugly rhetoric from the tea party rallies has actually invaded all the congress. listen. >> we want all tools available to use, including that impeachment. >> it is treasonous. >> are you a birther then? >> i'm not going to comment on it. >> this administration has so many muslim brotherhood members that have influence that they just are making wrong decisions for america. >> let's repeal this failure befor

the serial filibustering of several of president bush's circuit court nominees including miguel he is -- estrada whose nomination to the d.c. circuit was filibustered a record seven times. know they want to blow up the rules because republicans are following a precedent they themselves set and i might add are following that precedent in a much more modest way than democrats did. so how about this for a suggestion? how about instead of picking a fight with senate republicans by jamming through nominees through a court that doesn't even have enough work to do, how about taking yes for an answer and working with us on filling judicial emergencies that actually exist. yet, rather than learn from past precedents on judicial nominations that they themselves set, democrats now want to set another one. i have no doubt that if they do, they will come to regret that one as well. our colleagues evidently would rather live for the moment, satisfy the moment, live for the moment and try to establish a story line that republicans are intent on obstructing president obama's judicial nominees. that story line i

one was miguel estrada, one of the most highly qualified nominees ever presented. one was judge pickering. one was judge pryor who used to be a law clerk to judge wisdom, as i once was, and i know the high respect that judge wisdom had for him. so the end result was that we had this gang of 14 and the democrats ended up only stopping five of president bush's judges, but that was the first time in the history of the senate, and today including the judges that we're discussing now, the three on the d.c. circuit court, the total is five. so that is it, mr. president -- madam president. i mean, how can one say that president obama has not been treated fairly when in fact the answer is zero on supreme court, zero on district judges, zero on cabinet and the -- two on sub cabinet and the same on circuit courts that president bush had? i ask the senate historian if president obama's cabinet nominees had been moved through the senate more swiftly or slower than those of his two predecessors, bush and clinton. the senate historian told me it was about the same. so on that qu

i remember being at the white house working through with the miguel estrada legislation at the time.ough but it was with a bipartisan effort. at the end, i think it's just better for the country. when one party is deciding to bypass or change the procedural rules, it's going to come to bite the majority party in the long run. so i think they're going to be -- the democrats especially when we're looking at the 2014 senate elections, they look like they're going to be in trouble. it can come back and be very detrimental for the democrats. >> what if the nuclear card had been played months ago? would larry summers be the head of the federal reverse? how many of the 76 presidential nominees waiting for confirmation would already be at work right now? >> probably most of them. you get the whole concept of advise and consent. the keyword is consent, at least as the founding fathers designed it. what we had in the senate which, we had paralysis instead. that is the justification that people give for employing the nuclear option. by the way, this is a tradition that goes way, way, way back -

the whole filibuster argument started over miguel estrada, the first appellate nominee ever filibusteredcame out, remember from the democratic senate judiciary committee saying we've got to stop him. they're going to put him on the supreme court and we can't be seen blocking an hispanic nominee. who got fired? the man who -- not the one who wrote them republicans, they have a reason to say no more filibustering. this is the first time an appellate nominee has ever been filibustered. one of the reasons he was filibustered because he's thanked in the acknowledgment ofs of one of my books and chuck schumer denounced him. >> for making an involuntary appearance in your acknowledgments. i love it. >> so they at least had reason to. when republicans consider doing it and it was basically the threat that they -- with the gang of 14. we'll let democrat nominees through, you'll let some of ours through and then suddenly, it's the doomsday machine, the nuclear option. now, it's just democracy. >> it changes something kind of profound. it's a fact. it changes the way the senate works in a very basi