May 23, 2013
Capitol Hill
(REUTERS/Jonathan Ernst)

The current prelude to a showdown over filibusters between Mitch McConnell and Harry Reid can be understood as a game in which Democrats prefer Republican retreat from obstruction to eliminating the filibuster altogether, which means that McConnell’s goal is to retreat only enough to prevent Democrats from going nuclear, but no more.

That’s the context for what happened on the Senate floor this morning, nicely explained by Brian Beutler. The issue was D.C. Circuit Court nominee Sri Srinivasan. McConnell had previously forced a cloture vote (at least if Reid wanted confirmation before the upcoming recess); now, given that Reid had the votes to get cloture, McConnell retreated and agreed on a final confirmation vote this afternoon.

I think Beutler’s analysis is good. I’d add that this skirmish showed one wrinkle: Both sides seem to believe that the fact of a cloture vote matters in the jousting over how serious Republican obstruction has been. It shouldn’t matter; all that really counts here is that Republicans are requiring 60 votes for permission to take a final vote, not whether they (or Reid) insist on actually holding a cloture vote.

The remaining question is exactly where the line is that McConnell can’t cross.

This isn’t really about the leaders, however. On the Democrats’ side, it’s primarily about veteran senators such as Carl Levin of Michigan who have been most hesitant to change the rules (although they may well be speaking for a larger portion of the Democratic caucus).

Meanwhile, on the Republican side, I do wonder how many radical Republicans would prefer that McConnell does push Democrats over the edge. I’ve made the point before that the minority party really doesn’t, or at least shouldn’t, care about its ability to defeat most executive-branch nominations; what they want is the ability to make a fuss about them, win  or lose. It’s not as if defeating Gina McCarthy will get them someone at EPA whom Sen. Jim Inhofe, R-Okla., will love; it’ll just get them more of the same. So it’s possible that some Republicans would rather provoke the extreme partisan fight that going nuclear would cause — for those whose main contribution in the Senate is aggrieved partisan grandstanding, it’s made to order.

And if going nuclear ends judicial filibusters — well, radical Republicans may believe that they’re better off with majority confirmation of judges anyway. Not to mention that bringing about overall majority party rule to the Senate is probably the best chance for Republicans to eventually get repeal of the Affordable Care Act.

As Greg Sargent has been reporting, all of this is pointing to a July showdown. Even though one might think there’s an incentive for both sides to eventually find an equilibrium in which Republicans block some nominees but not quite enough to trigger the nuclear option, the chances for miscalculation are pretty large.