White House, allies weigh nomination strategy under new Senate rules

At Thursday's White House briefing, President Obama praised the Senate's vote to change filibuster rules. (The Washington Post)
November 22, 2013

The White House and its allies are formulating ways to take maximum advantage of this week’s change in the Senate’s filibuster rules to rapidly confirm more than 240 judicial and executive nominees awaiting approval.

Democrats hope to break a logjam in President Obama’s appointments, allowing him to push ahead with key parts of his agenda. But they also acknowledge that the political environment remains difficult, with many procedural tactics still available to Republicans intent on blocking his nominees.

Top priorities for the White House include the confirmation in December of Jeh Johnson as secretary of homeland security, Mel Watt to head the Federal Housing Finance Agency and Janet Yellen to chair the Federal Reserve, according to a White House official. Obama also hopes for quick confirmation of three nominees to the powerful U.S. Court of Appeals for the District of Columbia Circuit, which was at the center of the Senate fight, the official said.

White House aides and their allies said they have yet to finalize plans for how to push through another 186 executive nominees and 50 judicial nominees awaiting confirmation in the Senate. Decisions about how to move forward rest with Senate Majority Leader Harry M. Reid (D-Nev.), they said.

“There is no document; there is no blueprint,” said Robert Raben, a prominent Democratic lawyer close to the White House. “In terms of a strategy, everybody’s blinking really hard.”


The presidential nomination process was pushed into uncharted waters after the Senate changed its rules to require a simple majority, rather than 60 votes, to confirm most nominees. White House and Senate Democratic officials cautioned that breaking the personnel gridlock that has defined much of Obama’s presidency could remain difficult even with the change.

“We will move the folks who are stalled, but it’s not within our power to rush them through,” said Reid spokesman Adam Jentleson. “We will move them along in a timely fashion, but we didn’t give ourselves the power to move things faster. At the end of the day, it still has to be a fair vote. The hope is that filibustering these folks is futile and that people will do it less.”

Patricia A. Millett, one of Obama’s three nominees for the D.C. Circuit court, is expected to be confirmed shortly after the Senate returns from Thanksgiving recess on Dec. 9, officials said. Reid is expected to reconsider two other court nominees, Cornelia Pillard and Robert L. Wilkins, soon thereafter.

Overall, 189 Obama executive nominees are awaiting confirmation in the Senate, including 85 for Cabinet-level agencies, and their nominations have been pending an average of 140 days, according to White House statistics.

There are 53 Obama judicial nominations currently moving through the Senate, 17 of which are awaiting votes on the floor. On average, Obama’s nominees waited almost 100 days longer to be confirmed than President George W. Bush’s judicial picks, according to Congressional Research Service data distributed by Senate Democrats.

Republicans in the minority, outraged by the Senate Democratic push to change the rules, could employ a number of procedural tactics to slow confirmations to a crawl.

In an early sign of ill feelings, Republicans on Thursday evening would not agree to confirm a slew of low-profile nominees by unanimous consent, as is customary in the Senate before an extended break, according to senior Democratic aides.

Other delaying tactics at the minority’s disposal include blocking committees from holding meetings or denying the quorum required to move nominations to the floor by refusing to attend committee meetings.

On the Senate floor, there is still an exceptionally cumbersome process to move nominees through to a final vote, eating up precious floor time.

Under the new rules, there can still be 30 hours of Senate debate on each appeals court and Cabinet-level nominee. Nominees below Cabinet level get eight hours, and district court nominees get two hours. That means the Senate floor could be locked up for an entire day — with no other business conducted — over a single nominee.

For judicial nominations, senators can hold up approval for nominees from their home states by refusing to submit a “blue slip” okaying the choice. Ten pending judicial nominees have not had a Senate hearing because their home-state Republican senators have not returned their blue slips, according to a White House official.

Republicans have not indicated which delaying tactics, if any, they might employ, but they signaled a desire to seek revenge after Thursday’s vote. Sen. John McCain (R-Ariz.) said Democrats will “have trouble in a lot of areas, because there’s going to be a lot of anger.”

McCain suggested that the change could spoil other efforts, such as to ratify a United Nations-backed disabilities treaty that would put most of the world on a par with U.S. policy. Ratification requires 67 votes, and attempts to pass the treaty fell short last year. Supporters had hoped that would change in coming months.

On nominations, Raben said, the change in filibuster rules means that political fights are more likely to take place at the committee level.

“Background investigations, courtesy visits, hearings and committee markups around nominees take on heightened importance because once it gets to the floor, absent a horrific fact about a nominee where significant numbers of the majority won’t defend it, it’s only a matter of time,” Raben said.

Obama’s aides said the president hopes the change in filibuster rules will get business back to usual, allowing him to staff his administration and fill the federal judiciary with nominees of his choosing without delay.

“The president obviously welcomes that decision, but it’s not going to change what he does,” White House press secretary Jay Carney told reporters Friday. “His whole focus is on making sure that there are qualified nominees on the bench getting the work done that needs to be done in our judiciary and making sure that there are qualified individuals filling senior positions in the executive branch.”

Russell Wheeler, an expert on federal courts at the Brookings Institution, said that many of Obama’s 53 pending judicial nominees are considered fairly middle-of-the-road.

“I can’t look at this list and say that it’s going to make a great deal of difference, that there’s a revolution coming,” Wheeler said.

Paul Kane contributed to this report.

Ed O’Keefe is a congressional reporter with The Washington Post and covered the 2008 and 2012 presidential and congressional elections.
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