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Legal View with Ashleigh Banfield

Senate Debates "Nuclear Option" Rule Change for Filibuster; Women Lived 30 Years in Domestic Slavery

Aired November 21, 2013 - 11:00   ET

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.

ASHLEIGH BANFIELD, CNN HOST: Hello, everyone. I'm Ashleigh Banfield. It is Thursday, November 21st. Welcome to "LEGAL VIEW". Hi.

Drama on Capitol Hill this morning with consequences that could be felt for decades. Senate majority leader Harry Reid and other senior Democrats say they have simply had enough of Republican filibuster threats. And they're invoking what is known as the nuclear option. It would dramatically alter Senate rules to allow just 51 votes, a simple majority to overcome a filibuster. Let's listen in to Senator McConnell as he continues to make his case.

SENATOR MITCH MCCONNELL (R), MINORITY LEADER: Judicial nominees, he's effectively changing them for all judicial nominees, including the Supreme Court, as Senator Grassley pointed out just yesterday. So, look, I realize this sort of wishful thinking might appeal to the uninitiated newcomers in the Democratic conference who have served exactly zero days in the minority, but the rest of you guys in the conference should know better. Those of you who have been in the minority before should know better.

Let's remember how we got here. Let's remember that it was Senate Democrats who pioneered, who literally pioneered, the practice of filibustering circuit court nominees and who have been its biggest proponents in the very recent past.

After President Bush was elected, they even held a retreat in which they discussed the need to change the ground rules by which lifetime appointments are considered.

The senior senator from New York put on a seminar, invited Laurence Tribe, Cass Sunstein.

In the past, the practice had been that neither side filibustered circuit court nominees. In fact, I can remember, at Senator Lott's insistence, gagging several times and invoking cloture on circuit judges to the Ninth Circuit, knowing full well that once cloture was invoked they would be confirmed.

So this business of filibustering circuit court judges was entirely an invention of the guys over here, on the other side, the guys you're looking at over here.

They made it up. They started it. And this is where we ended up.

After President Bush was elected, they held this retreat I was just talking about. They made a big deal about it. It was all a prelude to what followed, the serial filibustering of several of President Bush's court nominees, including Miguel Estrada, whose nomination to the D.C. circuit was filibustered by Senate Democrats a record seven times -- seven times.

And now they want to blow up the rules because Republicans are following a precedent they, themselves, set, and, I might add, we're 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 to 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 precedence on judicial nominations that they themselves set, Democrats now want to set another one.

Now, 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 storyline that Republicans are intent on obstructing President Obama's judicial nominees.

That storyline is patently ridiculous in light of the facts.

ASHLEIGH BANFIELD, CNN ANCHOR: And these are just some of the first comments we're starting to hear in this debate.

I want to go directly to our chief correspondent Dana Bash, who joins me live now from Capitol Hill.

Dana, it can't be overstated, the significance of what's going on right now. For anybody who is just turning on the channel right now and sees that there's some conversation going on in the Senate, it is anything but just conversation in the Senate. Right?

DANA BASH, CNN CHIEF CONGRESSIONAL CORRESPONDENT: That's right.

Certainly they're talking about a very important process that Democrats are proposing to change, but process in Congress is always politics and, in this particular case, the process that they are at least attempting to change could be explosive, which is why it is actually called the "nuclear option."

This is already a very divided place, a very partisan place. And if Democrats are successful in changing the Senate rules, which is what they clearly want to do, and preventing Republicans from filibustering any of the president's nominees for the executive branch or the judicial bench, except for Supreme Court justices, which it looks like it's going to happen, this could make the division here even more strident.

And if you just listen to the tone from Mitch McConnell, it is very different already than what we hear on a daily basis, even when they're trading barbs.

We don't know exactly how it's going to play out at the end of the day. Here is what we think. What we think is that Democrats, after this speech is over, are going to attempt to have another vote on a judicial nominee to the D.C. circuit.

Earlier, Harry Reid was talking about the fact that one of their big beefs with Republicans right now is that they are preventing President Obama from filling three vacancies on the D.C. circuit, which many people believe is one of the most important -- maybe the second most important court in the entire land, because it feeds into the Supreme Court and because they hear a lot of important cases, including laws that Congress passes.

Republicans say there's not -- there is no need. They don't have the workload. Democrats say, you're doing this because you don't want to tip the balance of power on that critical, critical court.

That is what's going on. So what Democrats are going to do is try once again to have a vote on one of the nominees for that court. We expect it to fail because Republicans do have the 60 votes need to filibuster, which are the current rules.

Then we are likely to see the Democratic leader propose to change the rules so that it would just be a simple majority, and Republicans wouldn't be able to filibuster.

hen you're likely to see a vote on that, meaning a vote on the rule change, which would only require a simple majority to do.

So it's pretty easy to do. So, you might ask if it's so easy to change the rules --

BANFIELD: Why haven't they done it so many times?

BASH: Why haven't they done it before? Exactly. Exactly.

And the reason is, circling back to where you and I started this conversation, is because it is explosive. It is explosive with regard to the way things operate here.

Things operate here based on institution, based on respect for the institution and for the power of the minority. And it's what makes the United States Senate very different from the House.

This would take away a very important power of the minority, and Harry Reid who, of course, is now in the majority, acknowledged that when they're in the minority, they're going to have to live by these rules, too.

BANFIELD: And that is why it is so critical to know the arcane aspects of procedures in the Senate. It's like things like this. When this happens, that's why this is so critical.

Dana, stand by, if you will, for a moment, please. Our chief congressional correspondent Dana Bash is watching this procedure, and so is John Avlon, our CNN political analyst, who's standing by live as well.

John, there is no cliche that suit this is better than, be careful what you wish for, or perhaps, what goes around comes around.

JOHN AVLON, CNN POLITICAL ANALYST: That's exactly right. I mean, this threshold has been put in place as a check and balance, so the minority party in the senate has a chance to advise and consent.

The problem is that it's not working out that way. We've seen a dramatic increase in the number of filibusters overall in the Senate and, specifically, this three consecutive blocks of judicial nominees really has been a provocation.

There had been a ceasefire for a long time. It started to break down a few years ago, and so now these fights over judicial nominations are taking on really heated, intense opposition.

And so you see this opportunity to bring back and possibly change the filibuster rules.

It could bite Democrats in the butt if they get into a minority in the future, but right now, the hyper-partisanship in Washington is making this look like a necessity.

BANFIELD: And, so, what does that mean for certain Democrats out there who are more moderately minded, who are fearful that this could come back to bite them at election time in their districts, that kind of thing?

What does it mean for them? Will Harry Reid know exactly the vote count before actually going for the vote?

AVLON: Well, I mean, whipping these votes is incredibly difficult, and it's tough to get the math right, but ultimately in the Senate, it's a game of numbers. That's why Lyndon Johnson was so great when he was Senate majority leader.

So this vote'll be tight. You need to get 60 votes. There needs to be some kind of bipartisan cooperation here.

But there's no question that the filibuster has become so abused that whatever party is in the majority should fear the precedent that's been set.

The question is, again whether there's a sensible senator in the Senate that can come to some kind of constructive compromise.

But the impulse to filibuster these consecutive Obama judicial nominees and an increasing number of appointees was always going to lead to this kind of moment, this sort of showdown in the Senate corridors, because it's just a symptom of the hyper-partisanship that stopped government from working.

BANFIELD: OK. Hold, if you will, for a minute, John. I just wanted to bring some of our viewers up to speed.

You can see what it says on the screen, "Reid proposes filibuster nuclear option." It's absolutely what it says, a "nuclear option." This is when a boring chamber becomes very not boring, folks

When we come back after the break, Dana Bash is going to explain exactly what they're doing with this procedure right now, and if- slash-when this might come to a vote and why that drama is so high, as are the stakes.

We're back in just a few moments.

(COMMERCIAL BREAK)

BASH: You're looking live on Capitol Hill at the Senate floor. And here's why it's critical, what you're seeing.

Yes, there is a vote ongoing right now, but hold the phone. It is not the vote you've been hearing headlines breaking about all morning, the "nuclear option" vote.

I want to bring in our CNN's Dana Bash who's watching the process.

Could you for us, if you would, what vote they're talking about, why it's significant and if we might actually get to the money vote sometime later today?

BASH: We certainly might. And at this point, it looks like we will get to the money vote later today.

But what we're seeing right now is the first vote on the road to that "nuclear option," and this is a vote to reconsider, have yet another vote, for one of the judicial nominees that you and I were talking about before the break.

One of the judicial nominees that Republicans have been blocking through the use of the filibuster, which at this point they can do because you need 60 votes to overcome that filibuster.

So what the Democrats' strategy is, is to use this particular nominee, Patricia Millett, nominee to be a judge on the D.C. Circuit, to see if they can once again try to get it through.

We expect that Republicans are going to once again ultimately block it, and once that happens, that is when Harry Reid is going to propose to change the rules in order to make the threshold lower, a simple majority vote, 51 votes.

Now Republicans could call Democrats' bluff. They could vote to approve Patricia Millett.

Don't expect that to happen, but the beauty of covering the Senate is to sometimes expect the unexpected.

BANFIELD: And, so, is this a foreshadowing, then, possibly? If they don't use that strategy that you just outlined, almost the fake? Is this at least the foreshadowing of which Democrats might actually be on board with Harry Reid, with their leader, in his potential use of a nuclear option, or is this completely apples and oranges for the "nuclear option?"

BASH: That's actually a great question. It probably won't be a foreshadowing, the vote count at the end of this vote, foreshadowing.

Most Democrats, whether they want to change the Senate rules or not, want to get this particular judge on the bench. It might not be that much of a foreshadowing.

You allude to something important, Ashleigh.

Another reason why Harry Reid, the Democratic leader, hasn't made this move until now is because he didn't necessarily have the votes, because there were a number of veteran senators in his own caucus, Dianne Feinstein of California, Patrick Leahy of Vermont, who are pretty powerful and pretty insistent -- they were, at least -- that they not change the rules because of the respect for the institution and that the shoe is often on the other foot before they know it.

They changed their mind this week. They publicly said enough is enough, as Harry Reid laid out on the floor. We need to change the rules in order to make the institution of the Senate work better and Washington itself work better. That is why Harry Reid -- one of the main reasons he is able to do this now. He didn't have the votes necessarily before, even 51. Enough people in his caucus oppose it. Now it looks like he does.

BANFIELD: It is not often, Dana, that I watch your beat and I follow the people you follow every day and I'm reminded of like classic lyrics of famous songs like "wasted days and wasted nights." When I heard Harry Reid on the floor this morning referring to exactly those kinds of things and why that has inspired what he says he's going to do possibly today. I want to replay that so that everybody else who might have missed it this morning can hear what the Senate majority leader actually said on the floor. Have a listen.

(BEGIN VIDEO CLIP)

SEN. HARRY REID, (D) MAJORITY LEADER: Congress should be passing legislation that strengthens our economy, protects American families. Instead, we're burning wasted hours, and wasted days between filibusters. I could say instead we're burning wasted days and wasted weeks between filibusters.

(END VIDEO CLIP)

BANFIELD: Like I said, reminded me of the old song. I want to bring in CNN's legal analyst Paul Callan, and I want to ask you specifically, since you tend to know the legalities, the arcane stuff that most of us don't bother with, because it really only matters when the devil hits the details - like today. There -- ot's not as if the Republicans are sitting idly by with nothing in their arsenal. They don't only have sit by idly and watch this. They don't only have to use future threats in order to tamp down what's going on. What do they have?

PAUL CALLAN, CNN LEGAL ANALYST: Well, it's interesting because they don't have the votes to stop this. They don't have the majority in the Senate. So, the Democrats can vote the nuclear option in. What can the Republicans do? Well, there's something called unanimous consent. Sort of an old gentleman's rule that goes way back to the beginning days of the Senate, when you're supposed to read, for instance, every word in a bill on the Senate floor, in theory, before it gets voted on.

BANFIELD: I'm sad that you just said "in theory."

CALLAN: Yes, well, one person, one senator, stands up and says I move that we invoke unanimous consent and waive the reading of the bill. Now the reading of the bill is waived. You know what the Republicans are going to do? They're not going to consent to the waiving of the reading of the bill. I'm not talking about that, I'm talking about 100 other housekeeping maneuvers that are done by unanimous consent by this sort of assumption that we would all vote for this so we don't have to take a vote. They can stop the Senate dead in its tracks and strike back using an abundance of other parliamentary maneuvers.

BANFIELD: Effectively, it's a time-buying mechanism?

CALLAN: Exactly.

BANFIELD: Originally a time-buying mechanism so you could read the material --

(CROSSTALK)

CALLAN: It's speeding things up. It goes on all over the place. Anybody who's presided over a city council meeting or something in a local town in America, they waive the rules of parliamentary proceedure so they can get the job done. The Senate Republicans can say all right, you want to blow this thing up, invoke the nuclear option? We're going to invoke all of the rules of the Senate and we're going to stop this thing dead in its tracks. That's what they can do.

BANFIELD: You were one of those kids who watched "The Electric Company" "I'm Just a Bill." That's what sparked and that's why you know all this stuff, where most people really don't. And that's the critical material that we're dealing with today.

I want to sneak in a quick break while we're watching this roll call vote. We don't have the results on it yet, but when we do, like Dana Bash said, yes, fascinating but not necessarily the same apple as what might come later, that nuclear option.

We're also going to re-explain it if you're just joining us now, exactly what this nuclear option is. No, it's not about nuclear arms, but it's about as painfully powerful in the eyes of senators when it comes to getting your way. We're back in just a moment. Full explainer and possibly some results after the break.

(COMMERCIAL BREAK)

BANFIELD: Again, welcome back. We're following the breaking news on the Senate floor as the senators mill about in the well there, the headline says it all. Senator reed is proposing something called the nuclear option, essentially changing rules. Here is what it breaks down to, folks. The Republicans have been blocking Senate nominees three times over now, and the Democrats don't like that one bit. What do you do? You change the rules on how you can block the nominees, how you can end the filibuster. And that's something they call the nuclear option, because once you go there, there's no going back.

That's essentially what we're waiting on today. A little later on today potentially a vote that could effectively change the rules. If that happens, good luck, because what goes around comes around is what everybody is saying, at least on Capitol Hill.

I have other breaking news I want to bring to you as well, we watch this precursor vote. It's not the essential vote I was just talking about.

This is just a freakish story that is coming to us from overseas, something that at first blush sounded somewhat similar to the Ariel Castro case here in the United States. This one in London. Apparently authorities there have rescued three women from a household who appear to have been held captive. And this is where it gets very different, for more than 30 years. Three decades in captivity. Atika Shubert joins us live now from our London bureau. I think there may be some significant differences in this case, but is it true, three decades of captivity?

ATIKA SHUBERT, CNN CORRESPONDENT: In fact, detective inspector Kevin Highland just said at least 30 years against their will held in that house. Which means in this case that at least the youngest of them, the British woman, was most likely born there. She is 30 years old. The other victims were a 69-year-old Malaysian woman and 59-year-old Irish woman. This does look, according to the police, they've never seen anything of this magnitude, Ashleigh.

BANFIELD: So few of us have ever heard anything like this and we covered the worst of the worst, Atika. I saw some of the preliminary notes on this particular case, and it is developing, I wasn't totally clear on whether this was a case of sex crime or whether this was a case of slavery or servitude. Or do we even know that yet?

SHUBERT: To be perfectly honest we don't have all the details. What the police and what the charity that was involved in freeing this women are saying is that this is a case of domestic slavery. What they're seeing is indications, certainly, that these women were threatened. Most likely that there may have been physical violence. Although they don't have the details on that yet. But they are not saying that there appears to be any sexual motive at this point.

But, again, this is all still happening very quickly. The arrests were made just a few hours ago. And the women are very traumatized, as you can imagine. They're all in a safe location now. Police are still talking to them to find out what exactly happened inside the house, how were they kept against their will. They apparently had rooms in the house, but were unable to communicate with the outside world. The only way they did get word out is one day the 57-year-old Irish woman was watching TV, a program on forced marriages and she saw a charity called Freedom Charity. She gave that charity a call and that's how they were ultimately freed.

BANFIELD: Ultimately just remarkable. Atika, I know you're working furiously to try to gather more details. I want to let you get freed up to work the phones and find out more details and please do bring them to us as soon as you learn more about this. Again, that headline from Atika Schubert. Three woman released after captivity that may have lasted beyond 30 years, three decades. All of this transpiring in London in the last hour or so.

Another major breaking story we're working on right here at home on Capitol Hill, on the Senate floor. This is where the rubber hits the road, folks. Votes going down in that House today could dramatically alter just how partisan our political environment is. As if it could get more partisan. Buckle up.

(COMMERCIAL BREAK)