The Washington Post

Filibuster reform may not open confirmation floodgates

Senate Majority Leader Harry Reid (D-Nev.). (Photo: Andrew Harrer/Bloomberg) Senate Majority Leader Harry Reid (D-Nev.). (Photo: Andrew Harrer/Bloomberg)

Despite the Democrats’ controversial “nuclear option” move Thursday to eliminate filibusters on  judicial and other nominees, don’t look for the confirmation floodgates to open any time soon.

We’ve entered truly uncharted waters.

Yes, the filibuster change means the final outcome — confirmation — is now assured. But now-furious Republicans can still use procedural hurdles to slow confirmations to a crawl and to make life most difficult for their very good friend from Nevada, Majority Leader Harry Reid.

And, as Republicans now warn, he may regret the move. For as uncooperative as Republicans have been, slow walking judicial nominees at the committee level and before allowing a floor vote, they have at least allowed most lower court nominees to be confirmed in a single vote.

As this Congressional Research Service report documents, Reid filed cloture on 20 district court nominees in 2011 and 2012 — but Republicans relented on 19 of them and the motion was withdrawn, leading to a single easy confirmation vote.

Now, post-nuclear winter, it would likely take an additional 40-plus hours of precious Senate floor time to get those 19 low-level judges confirmed, if Republicans decide to up their game of confirmation hardball.

The problem is that, while reducing the number of votes required to invoke cloture (to end debate on a nominee) from 60 to 51, the exceptionally cumbersome cloture motion process itself still exists.

So, assuming there’s no way to get unanimous consent from Republicans to get to a vote (or anything else), Reid will still have to file a cloture motion to end debate on a nominee. And, yes, now he’ll get the simple majority he needs to win that vote.

But, under existing rules, there can still be 30 hours of Senate debate on each appeals court and cabinet level nominee. Sub-cabinet nominees get eight hours and district court nominees get two hours. That means the Senate floor could be locked up for an entire day — no other business (hearings, other matters) conducted — over a nominee.

For example, let’s say Reid files for cloture on a Thursday. The move “lays over” for a day, on Friday. Then there’s a vote on Monday, usually around 6 p.m. where a majority votes for cloture.

Then, assuming a top job is at stake, 30 hours are reserved so members can wander down to the Senate floor to praise or condemn or just chat about the nominee. It could be the Senate has to remain in session the entire time, meaning no business can be conducted until after midnight Tuesday.

If you’re up for some important job, say a key appeals court seat or regulatory post, that’s something that may be worth such effort. If not, you may be in a very long tunnel indeed, though, yes, there is light at the end of it.

Al Kamen, an award-winning columnist on the national staff of The Washington Post, created the “In the Loop” column in 1993.



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Emily Heil · November 22, 2013

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