Just how many of President Barack Obama's nominees will get confirmed this year? If last week is any indication, the answer may depend on whether Democrats once again employ the "nuclear" option to effectively change the Senate's rules.
Senate Majority Leader Harry Reid made a big deal last week about scheduling nomination votes on the Friday before recess, but with senators in both parties eager to jet out of town, the Nevada Democrat was forced to punt.
“We are slogging through these nominations,” Reid said April 10 on the Senate floor. “It is kind of slow because of the inordinate amount of time that we are caused to eat up.”
Reid pondered on the floor whether he should have gone even further on rules changes last year, given the Republican slow-walking of nominations whose confirmations have become a fait accompli, and he lamented that a minimum wage debate he hoped to have on the Senate floor before the break was delayed as a result. In November, the majority leader and his fellow Democrats detonated the so-called nuclear option to prevent the minority from blocking executive and most judicial nominations. But Democrats didn't limit the debate time allowed under the rules on nominations — with Republicans in some cases entitled to up to 30 hours per nomination.
"I might say many of these nominees would have been confirmed last December had we not experienced this event perpetrated by the majority in a heavy-handed attempt to alter the balance, to change the nature of the Senate with a simple majority," Senate Minority Leader Mitch McConnell, R-Ky., said on the floor. "It was an unfortunate decision, but those kinds of decisions have consequences. And all we have done here is exercise ... the rights that senators have under the rules of the Senate.
"If the majority leader doesn’t like the way the Senate is working, I would recommend that he change his behavior," McConnell continued.
Or, Reid could effectively change the rules again.
Senate Democratic aides said it's unclear whether there are enough votes to use the nuclear option a second time to limit the post-cloture time — yet.
"What you will have again is a slow building up of these violations of the comity of the Senate," one aide said. “And you'll have, if it continues, the momentum again to make another rules change."
The aide said Democrats' options range from eliminating post-cloture time to requiring a talking filibuster once cloture is invoked on nominations.
Post-cloture time wasn't really discussed back when Democrats were gearing up to go "nuclear."
“The goal was to make it so that if we went through all this trouble and took all this floor time people would be confirmed,” one aide said.
There's also the likelihood that Republicans would shift to other retaliatory tactics, such as limiting the time committees can meet.
Delaying tactics take on extra power in an election year because any business that can’t get done efficiently is likely to be kicked over into a post-election session — where the dynamics may be very different because of the election's outcome.
Democrats, should they lose the majority, would likely face a choice — cut loose some nominations given the limited time available or eliminate post-cloture time to slam through nominations before a Republican holds the gavel.
Another Democratic aide said Republicans appear to be using a playbook of calibrated obstruction strategy aimed at mucking up the schedule but not so much that Democrats would go nuclear again.
It's clear Democrats and the White House have successes from going "nuclear" despite the trouble, including filling three seats on the U.S. Court of Appeals for the District of Columbia Circuit and confirming Labor Secretary Thomas E. Perez and naming ex-Rep. Melvin Watt to head the Federal Housing Finance Agency. None of those nominations received 60 votes and presumably would have been blocked without the rules change.
A Republican aide said any talk of further changes to the nominations process belies concerns Democrats have over keeping their majority.
"They look desperate," the GOP aide said. "Desperate to do what they could ahead of what many observers say will be a very difficult election day for Senate Democrats."
The aide also suggested that the new simple majority hurdle for nominations has exposed rifts among Democrats.
One case in point was the nomination of Debo P. Adegbile, who was nominated to head the Department of Justice’s civil rights division. Eight Senate Democrats voted against Adegbile after groups such as the Fraternal Order of Police came out against the nomination over his participation in the legal defense of convicted cop-killer Mumia Abu-Jamal.
"The check on executive power is gone," the aide said of the nuclear option. "Now the administration is only expected to court the most partisan block of Democrats they can find."
A new book on the filibuster, "The Senate Syndrome" by Steven S. Smith of Washington University in St. Louis, suggests the current balancing act isn't a long-term answer.
"The compromising reformers' search for a new balance between majority rule and supermajority cloture is likely to fail," Smith wrote.
"Most recent reformers ... are not very specific about the place in history to which they would like to see the Senate practices restored. Many of them point to the mid-twentieth century, when filibusters were rare and seemed to be reserved for the most important issues. This wish reflects self-deception or ignorance," Smith wrote. "Liberals of that era were at least as agitated as today's reformers about how parliamentary procedure was used to block action on their legislation."