May 17, 2013

Greg Sargent over at Plum Line has a big scoop today: Harry Reid is planning to devote July to nominations and will “go nuclear” if necessary — using majority-imposed reform to end the ability of minorities to block executive branch and judicial nominations.

This is exactly the right path for Reid, the Senate majority leader, to take.

It’s a complex situation. For most Democratic senators, the preferred solution is almost certainly Republican retreat to more traditional opposition, in which filibusters were used very selectively against a handful of nominees, and other forms of obstruction (the kind that delay, not kill, nominations) were also used selectively. Republicans are not blocking everything; if they were, majority-imposed reform would be an easy call. What they are doing, however, is forcing every nominee to get 60 votes for permission to take a final vote, and most (but not all) Republicans are voting against allowing a final confirmation vote on every nominee they oppose. They’re also blocking some positions — the National Labor Relations Board, the Consumer Financial Protection Bureau, possibly one or more seats on the DC Circuit Court — by refusing to allow final votes on any nominee in order to prevent the agencies from functioning.

The more Republicans obstruct, the more likely Democrats will decide that majority-imposed reform is better than the status quo. The trick for Republicans, then, is to stay just on the safe side of that line, at least if their goal is maximizing obstruction.

For Reid, the trick is to find a way to ratchet up the threat of reform in order to push Republicans as far away from that line as possible. That’s a very difficult job; after all, he can hardly announce that he’s okay with Republicans filibustering Smith as long as they don’t filibuster Jones (thus inviting them to filibuster Smith, something he doesn’t want but which might not trigger reform).

As far as I can see, Reid is doing an excellent job at this complex game; leaking this threat now and generally upping the ante on nominations in general seems to be exactly the way to go. Sargent’s report has Reid ready to pull the trigger if Republicans defeat cloture on three specific upcoming executive branch nominees. That seems about the right way to play it; it’s a tough, specific threat (ratcheting up!) while still leaving plenty of ambiguity about whether a slightly different configuration of obstruction would also trigger reform.

The other part of this is that the threat of including judicial nominations in reform should get Republicans’ attention. In my view, both parties should be perfectly happy to move to simply-majority cloture on executive branch nominations. However, losing the ability to block judicial nominations, especially at the appeals level, would be a significant loss for the minority party. Perhaps it’s enough to get them to back down.

Good for Harry Reid for engaging on this. Now let’s see how Republicans respond.