March 13, 2013

What should Senate Majority Leader Harry Reid do about GOP obstruction on nominations? He should threaten majority-imposed reform. Right now.

It’s apparently beginning to occur to Senate Democrats that they didn’t solve the problem of Republican obstruction completely and for all time with the minor fix they passed back in January. At least, that’s what Brian Beutler hears, and he’s a good reporter.

Granted, this is right up there with Captain Renault being shocked to find gambling at Rick’s. It was obvious at the time that the January Senate reform was narrow, and at best would help the majority move through non-controversial items, especially nominations, more quickly — and that the reason that any more extensive reform didn’t get through the Senate was that most Democrats didn’t want to eliminate the ability of 41 senators to stop something.

It’s early still, but it’s very possible that the reforms that were passed are successfully accomplishing what they could reasonably be asked to do. Note, for example, the two judges who were confirmed rapidly on Monday afternoon — one with a voice vote, one with a simple (and unanimous) roll call vote, and both of them after a consent agreement that provided for minimal debate time.

On the other hand, the 60-vote Senate remains intact. And that means not only that Republicans will select out specific nominees to defeat (I’m expecting presumed Labor Secretary choice Thomas Perez to be the next one), but that they’ll “nullify” entire agencies by blockading anyone President Obama sends up. That may also be the case with the D.C. Circuit Court — they’ve used the filibuster to block Caitlin Halligan and may simply have decided to confirm no one for that key panel for the rest of Obama’s presidency.

Beutler reports that “the last thing leaders want is to create the expectation that they will change the filibuster rules in the middle of the current Senate session.” That’s exactly the wrong way to play this. The only leverage Democrats have over nullifying Republicans is the “nuclear” threat of majority-imposed rules reform.

That’s particularly appropriate on executive-branch nominations, where the justification for supermajority requirements is weakest. But it’s a reasonable threat to use if Republicans use the filibuster broadly on judicial nominations, too.

Again: given that ultimately they have the ability to prevent it, Senate Democrats simply cannot sit around passively for the next two (or four) years allowing Republicans to nullify federal agencies such as the Consumer Financial Protection Bureau by filibustering everyone the president nominates. I understand their reluctance to do party-imposed reform because of the risks it holds for the Senate, but the risks of nullification are even greater. Harry Reid and the Democrats should be threatening to go nuclear, at least on executive branch appointments, right now — and if Republicans leave them with no other option, they should act on it.

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