Dave Weigel writes:
When the next Senate meets to confirm nominees, it will have only 45 Republicans. Only five of them will be needed for cloture on nominees, and filibusters of high-level nominees are exceedingly rare.
Absolutely wrong. Of course Republicans will filibuster many, and perhaps all, of Barack Obama’s Cabinet and other executive-branch nominations.
Filibusters of this type of nomination were exceedingly rare before 2009; Weigel is right about that. Indeed, Democrats challenging George H.W. Bush’s nomination of John Tower for defense secretary in 1989 and George W. Bush’s nomination of John Ashcroft for attorney general in 2001 were willing to win or lose on a simple confirmation vote. No cloture necessary. Just a simple majority.
Since 2009, however, filibusters — insisting on 60 votes for confirmation — have become common.
It is true that not all of these filibusters have been successful; in fact, most have failed, although it’s easy to find cloture votes that fell short. But the real point is that Republicans have used even the successful cloture votes to establish a 60-vote standard that never really existed before 2009, one that has been so institutionalized that Weigel takes it for granted.
Most Republican senators, in most circumstances, make no distinction between opposing a nomination (or a bill) and opposing cloture on it — so virtually every opposition results in a filibuster. And even in the cases where Democrats did have 60 votes, it sometimes is a struggle, and at the very least it threatens to take far more Senate floor time than would normally have been necessary for all but the most controversial appointments.
I have no idea whether Republicans will successfully defeat by filibuster any of Barack Obama’s upcoming high-level executive-branch appointments. I’m certain, however, that they will require 60 votes for most or all of those nominees. In other words: They may or may not defeat them, but they will attempt to, and their attempt will be by filibuster.