Melissa: Thanks for being with us on the takeaway. I'm Melissa Harris-Perry, settle in you all, we're going to talk politics but to get to where we're going, we got to go back.

Participant: Under the precedent set by the Senate, today November 21st, 2013 the threshold for cloture on nominations not including those in the Supreme Court of the United States, is now a majority. That is the ruling of the chair.

Melissa: That was nearly a hundred years of procedure in the US Senate changing in a matter of about 20 seconds, 20 seconds that set the stage for this moment nearly a decade later.

Participant: I've registered as an Arizona independent, a growing number of Arizonans and people like me just don't feel like we fit neatly into one party's box or the other.

Melissa: Let's take this walk together. See back in 2013, President Barack Obama was facing a very frustrating second term. A few years earlier, Democrats had lost the House of Representatives in a 2010 midterm shellacking. Although they maintained a Senate majority it was by a super slim margin. The wobbly divided government was the site of a rather epic partisan power struggle, one that was playing out quite visibly on the train of judicial nominations.

The Democrats slim majority in the US Senate still left them effectively powerless. Unlike the simple majority rules of the US House of Representatives, since 1917 Senate Rule 22 had required a two-thirds majority vote to invoke cloture and end a filibuster. Without 60 senators, Democrats were in a holding pattern constantly.

Harry Reid: Even one of the senate's most basic duties, confirmation of presidential nominates has become completely unworkable.

Melissa: That's the late Senator Harry Reid, Democrat of Nevada. In 2013 he was Senate Majority leader and he was fed up. Senate Republicans were using the filibuster to block President Obama's nominations of dozens of federal judges, including on that day the nomination of Cornelia Pillared to the US Court of Appeals for the DC circuit. Senator Reid went nuclear and invoked the rule change that made it possible for a simple majority of senators to confirm non [unintelligible 00:02:25] judicial nominations to the federal bench.

The year before the rule changed, the Senate confirmed only 36 of President Obama's nominees. The next year after the rule change, the Senate moved through 84, but it was hardly a cure-all for all of what Ailes the upper chamber. With the filibuster still in place for most votes, republicans were able to block much of President Obama's agenda and his final Supreme Court nominee in 2016.

For those paying close attention, a small but meaningful shift had occurred. The center of gravity was now in the party. In a closely divided Senate, power could be wielded from within by anyone willing to just say no, enter Kyrsten Sinema. Still, in her first term, the center from Arizona has been unusually influential over well almost everything, just by saying no.

Participant: Miss Sinema no.

Melissa: She gave a thumbs down to the $15 per hour minimum wage. She helped block Democrats' attempts to raise taxes on the ultra-high income earners. The Arizona State Democratic Party censured her back in January after she opposed changing the Senate's filibuster rule, which could have helped to pass a major voting rights bill. Last week, Howard shifted again.

Participant: Democrat Raphael Warnock winning in the Senate runoff beating Hershel Walker by nearly 100,000 votes.

Participant: You have done it again. Thank you, George.

Melissa: Now, Democrats had 51 and Sinema made a move joining Maine's Senator Angus King in Vermont's Bernie Sanders as a Democrat independent. Sanders doesn't seem particularly thrilled and suspects Democratic voters in Arizona feel the same.

Participant: The democrats there are not all that enthusiastic about somebody who helped sabotage some of the most important legislation that protects the interest of working families and voting rights and so forth. I think it really has to do with her political aspirations.

Melissa: What does all this mean for the balance of power in the Senate, especially when it comes to the issue that got us here in the first place?

Participant: These appointments are critical. Even though a conservative majority presides on the Supreme Court, the bulk of all federal cases are still resolved by Circuit Court judges. One judge at a time the Senate continues fulfilling its mission, making sure our courts reflect the diversity and dynamism of America.

Melissa: Senator Schumer has a point and Sinema just might still have some power. Joining me now is Natalie Jennings, senior politics editor at Vox. Thanks for being here Natalie.

Natalie: Thanks for having me, Melissa.

Melissa: Sophia Cai, Congressional reporter at Axios. Sophia welcome to the takeaway.

Sophia: Thank you.

Melissa: Sophia, I want to start with you, now that Sinema has moved away from the Democratic Party, what does that mean for the balance of power?

Sophia: It really doesn't mean that much is different. Democrats will still hold a majority and Sinema while she isn't a member of the party, she will still caucus with the Democrats and importantly she will still keep her committee assignments. What that means is that Democrats can move away from the power-sharing agreement that this congress is under and they will have more of the budgets, more office space and in the committees, they will have a majority.

When it comes to nominations that you mentioned on the Senate Judiciary Committee, for instance, Democrats will go from being split at 11 Democrats and 11 Republicans to having two more. They'll have 12 versus 10. What that means is that they won't rely on having every single Republican on board to confirm nominations.

Melissa: I want to dig into this a little bit more because I get your point, Sophia, that she is presumably caucusing. She's at least if she's not caucusing with Republicans but Natalie, Sinema's record is quite different than the other two independents. The very fact that we're simply counting them as Democrats. In our numbers balance here, that's not really where Sinema's voting record shows. Right?

Natalie: Right. During her time in the Senate which is only since 2018, she has really shown herself to be someone who wants to really move to the center really has given pause, cause the Senate to slow down on a number of issues, particularly the last two years while they've been in the majority. That is not something you see out of the other two independent senators. I see no reason for her to fall in line like that now. She has done something that in effect while it doesn't change the numbers it frees her up from the day-to-day expectations I think of Democrats and any semblance left that she would automatically be on their side.

She has a stake in this position and I expect her more than the other two to use it when it comes to a lot of things. One thing I will point out though is that while she's been holding out on a lot of things it hasn't been on nominations necessarily. That is not a place where she has stuck out that has been more on that minimum wage that you talked about earlier on changing the filibuster in order to get some voting rights legislation. She was the holdout there but nominations which is what the Senate is going to be really focused on this year is not where she has been the problem child for Chuck Schumer in the last couple of years.

Melissa: Let me just follow up on that for just one moment. This idea of her being a slightly different kind of independent. I wonder if again if we're thinking about power if part of it is also creating a model for others to follow. There are some new freshman senators coming in who also just flipped Senate seats in relatively purple places. Will they look to Sinema as a model

Natalie: They won't claim to. I think she would like that. I think as far as her legislating and being able to work with Republicans, that is something maybe that they can look to. You heard of interesting Rafael Warnock a lot in his senate race. He's not a new senator but he did talk a lot in that race about how he worked across the aisle on different priorities. That is something that Sinema has made a hallmark of hers going back even to her days in the Arizona legislature and something she says she wants to do now. We see a little bit of evidence of that.

To the degree that they want to look at someone who makes deals could be that but I think they don't want to draw the ire of the Democratic caucus these folks who just won in the way that's Sinema has drawn it in the last couple of years.

Melissa: Sophia I want to stay in the Senate for just another moment. The Senate does have the sole vote on these federal judicial confirmations. As Natalie's pointing out hasn't stood out as a thorn in the side on that at least at this point. I'm wondering what you think the White House's approach to nominations is likely to be going forward.

Sophia: I think the White House will be full on full speed especially now that they have a majority in the committee. Then when it comes to full votes, they will no longer have to deploy Vice President Harris to break the tie. She has spent a lot of time shuffling between White House and Congress across to spend her time breaking ties at votes. When it comes to the confirmation of judges, right now Biden is outpacing Trump. Biden has gotten more than 90 confirmed, and that's compared to Trump's 83. Now that there should be no more blue roadblocks, I think they will continue to focus getting diverse judges.

I think they just managed to pass the eighth or the ninth black woman through. I think they'll continue to do that. I think the Biden administration as Ron Klain, they're all very proud of that record and that priority that they've set starting from the Supreme Court down.

Melissa: Yet Sophia's, the record where it has massive impact, but often massive impact that happens years, decades after a president actually makes these nominations, puts these folks on the bench. It's part of why it's so important, but there is now, within seconds, we're going to be in a full fledge election campaign. Either a re-election campaign for President Biden or Democrats who are going to be really pushing to go forward is shaping the federal bench a good reelection strategy.

Sophia: Absolutely. Right now you see the impact of the many judges that Trump was able to get confirmed, especially with a lot of policy issues, especially policy implementation issues, being punted to the judiciary. If you think about items like student loan forgiveness, if you think about, COVID measures that the Biden administration has been implementing. Some of those key items recently, you've seen them getting ruled on. Including some of the Trump-appointed judges of course, especially in those circuits where they make up the majority. The impact of Biden's confirmations, they will be felt down the line.

Melissa: All right, we're going to take a quick pause here and we're going to check in on the Lane Duck Congress. It's a little bit more of the 117th left to go before the end of the year. Stay with us. It's The Takeaway.

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Melissa: It's The Takeaway, I'm Melissa Harris-Perry. We're going to shift a little bit, we're going to look at what lies ahead for the 118th Congress as the balance of power shifts. Before we get there, we got to remember the 117th still has a little time left to govern. I've been speaking with Natalie Jennings, senior politics editor at Vox, and Sophia Cai, Congressional reporter for Axios.

Now, before the freshman and the returning folks are sworn in on the third, we've still got this lame-duck session. Natalie, I'm wondering if you see any possibility for the Biden administration now in a relatively stronger space relative to their, what's going to go forward than what they expected that they might get some must-pass work done right now.

Natalie: The Biden administration has their must-haves and their would-want-to-haves, and your listeners probably have a little deja vu right now as we're in the middle of another end-of-the-year spending fight. Congress has got to fund the government, and the Biden administration would certainly like to do that with Democratic control of Congress, rather than kick that to when Republicans take over the house next year.

Last night, the members of Congress who are overseeing those talks said that they have a framework. They've agreed that they have a way they've agreed on the numbers to get them to end of the year spending bill. That framework doesn't have a lot of details and we'll start to hear soon whether any of those details that are in that framework that they have agreed to include things like the child tax credit that the Biden administration wants to expand.

What priorities of the Biden administration are going to get funded under that? Now we know that at least that big must-have is going to be fulfilled most likely by December 22nd or 23rd. We're not going to shut the government down, and we're about to see if any of those want to have that tax credit make it in.

Melissa: Natalie, let me zoom in on the child tax credit for a moment because that is what one of the big lame-duck priorities we've been really talking about and focusing on here on the show. In part, because I find it so surprising that it-- As a political scientist, the rule is once you've got a policy in place that people like, that actually literally sends money to people on a monthly basis, that you just can't get rid of that without big political costs.

I guess I'm wondering, can Republicans in this moment actually get on board, get that through, take credit for it, given that they're now two years off from their own reelection? They're not going to be held accountable for overspending, for example.

Natalie: Right, and some of them have made this not just something they can sneak in before reelection. You look at Mitt Romney, he has made this kinda a signature issue of his. The devil [unintelligible 00:15:36] has been in the details and there was reportedly from Politico a breakthrough on that earlier this week in terms of the work requirements that are tied to that. The Republicans have insisted, and Joe Manchin has insisted on some work requirement for expanding that tax credit.

Apparently, the White House according to that political reporting is ready to negotiate on that and so that brings you closer to a deal. Now, that we are running up against this very, very short clock to work out a deal, the Senate and Congress don't tend to work out things very fast. While there is some breakthrough in a little bit of agreement, it's a matter of whether they can get this done in the next few days, while we've got this spending package it could attach to.

Melissa: Sophia, let me take you over to the other side of the aisle. There's a lot going on for Congressional Republicans at the moment, and certainly, one part of that has to do with now that they're going to be coming in with a majority, they're trying to figure out their leadership structure. Talk to me about how Kevin McCarthy might be looking at this lame duck and what he thinks his priorities are.

Sophia: Kevin McCarthy right now, he is focused on the political fight of his life. What I'm talking about here is that he really needs to secure all of the votes. that's 218 in January to win the votes for speaker and he's won the nomination. In January he will go to a full floor vote, and right now it looks like he doesn't have enough votes. At least judging by the way that the members of the far-right Freedom Caucus, have been chatting about where they stand.

There are five members who have said that they oppose Kevin McCarthy and he can only afford to lose four votes because of how narrow the Republican majority is in the house. That's how Kevin McCarthy has been spending his lame-duck session.

Melissa: We did see though Sophia, in this case, respect for marriage just pass president signed it yesterday. You don't see other room, I'm trying to be very hopeful in the advent season, room for, any other bipartisan space.

Sophia Kai: That's a good point. There are a few things that I'm keeping my eyes on. One of them is the Electoral Count Act reform, which they're looking to just clarify the vice president's role in certifying a presidential election, as nothing more than ministerial. It's something that a bipartisan group of senators they've been working on since the summer, and they finally got to a place where they have 10 or more Republicans on board.

That's something that Leader Schumer is looking to add to his year-end omnibus and of course, that's not a must-have, but it would be a really nice to have because it's been a priority for this bipartisan group and others. I would say the support for that is a little bit larger, the Republican Party. That's one item. There was some chatter about marijuana and bipartisan agreement there and what that looks like is, it would include some provisions to allow marijuana companies to access banking, in those states where the drug is legal.

As well as some provisions to allow states to make it easier to do expungement of those past convictions. That package is also something that leaders Schumer and other Democrats will be looking to add, but it's unclear when and where they'll stick that. We're getting to the last, under the wire right now, the last chance for all of the items, Democratic priorities, but some Republican support.

The list goes on, it also includes items like the Equal Act, which would decrease sentencing disparity for crack cocaine. That also has in theory enough Republicans to support it, but there's a lot of items and not that much time here.

Melissa: Sophia Cai is a Congressional reporter at Axios. Thanks for being here, Sophia.

Sophia Kai: Thanks so much.

Melissa: Natalie Jennings is the Senior Politics Editor at Vox. Thanks so much for joining us today.

Natalie: Great to be with you.

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