One story on filibusters — the question of reform — is actually fairly simple, if we ignore the rhetoric and the sideshows.
The majority party in the Senate allows filibusters because it’s in the interest of senators to retain as much individual influence as possible. That impulse can compete, however, with the interests of the party as a whole. Therefore, the more the minority party uses filibusters, the more the majority party will be tempted to impose reform.
That’s really all there is to it.
Moreover, on nominations, the line at which partisan concerns outweigh caring about the rights of individual senators is pretty clear: It’s the attempt of the minority party to go beyond blocking specific nominees and attempting, instead, to shut down a position entirely. That’s what happened this summer with the “nullification” of executive branch filibusters, in which Republicans attempted to shut down agencies such as the National Labor Relations Board by refusing to confirm anyone. And it may happen again if Republicans refuse to allow Barack Obama to put anyone on the D.C. Circuit.
Jennifer Bendery has the latest: Republicans are threatening to block all three current nominees. Sometimes with the completely laughable slogan of “court packing;” sometimes, as Bendery notes, with a flat-out admission that they’re attempting to keep the balance of power on that key court tilted their way; Sen. Mark Kirk (R-Ill.) says simply that his party is “worried about that court being a significant bastion for administrative law cases on Obamacare.”
In response, no surprise; Sen. Pat Leahy (D-Vt.) is threatening to go nuclear — that is, use majority-imposed reform to stop the filibusters.
As with the shutdown this summer, it’s a very believable threat. The majority wouldn’t end filibusters in order to protect every single nominee but will surely do so to defend the principle that the president can get at least some nominee confirmed.
All of which leaves it up to the Republicans: Will they give Democrats five votes to allow cloture? Or are we in for a major confrontation?
We’ll find out soon.