January 9, 2013

Political scientist Stephen Smith made a good point today: Republican knee-jerk opposition to Barack Obama’s Cabinet picks may well push reluctant Democrats to embrace stronger Senate reform.

Remember, with divided government a fact for at least two more years and most likely for four (since the president’s party usually loses seats in midterms, especially with a second-term president), the truth is that legislative filibusters aren’t very important. Anything signed into law is going to need at least a solid number of House Republicans, and anything that gets a solid number of House Republicans will probably be able to get a similar percentage of Senate Republicans. That is, very little is going to become law without the support of both Harry Reid and John Boehner, and anything with both of them on board should be able to get 60 senators.

But nominations? That’s just between the 55-Democrat Senate and the Democrat in the White House. If the Democrats stick together, the only way nominations could be blocked is by Republican filibusters. So the question of Senate rules has an immediate effect on the outcome of nomination battles.

As I’ve said before, in my view there’s a pretty good case to be made for retaining a de facto supermajority requirement for lifetime judicial appointments, especially at the circuit and Supreme Court levels. But for executive branch nominations? No way. The tradition that the president should get to select personnel, except perhaps in extraordinary cases, was a good one. Not only that, but most of the political benefits to Republicans in these cases come from opposing the nominees; they don’t actually have much interest in defeating them. And one more thing: The president has the leverage to win anyway on executive branch appointments, since he can always resort to recess appointments that avoid confirmation altogether. 

All of that means that simple majority cloture on executive branch nominations should be something that both sides are probably willing to live with. And all Republicans are doing by threatening to block nomination after nomination is making it more likely that swing Democratic senators will realize that the current rules just aren’t working. 

Overall, filibuster reform is badly needed, and there are some good ideas out there to solve a fairly difficult problem. But on executive branch nominations, reform is urgent, and easy. Here’s hoping that reluctant Democratic senators, who correctly value the traditions of the institution and the rights of individual senators, realize that the only way in the long run to protect those things is to support reform right now.