The coming fight over Chuck Hagel should show, again, one clear thing: The Senate is far better off with simple majority confirmation of executive-branch nominations. In fact, it’s one reform that the minority party shouldn’t oppose.
Assuming that all, or almost all, Democratic senators will stick with the president and support Chuck Hagel’s nomination for secretary of defense, we’re left with two questions: Will Republican oppose him unanimously — and will they insist on 60 votes to confirm?
Remember, John Tower in 1989 was defeated in a regular vote, with only a simply majority required. John Ashcroft, in 2001, was confirmed narrowly, with a simple majority but nowhere close to 60 votes. In neither case did Democratic opponents launch a filibuster and insist on 60 votes in order for the nominee to be confirmed.
Will Republicans filibuster — that is, will they insist on 60 votes? Some observers don’t think so. Perhaps not. But generally Republicans have demanded 60 votes on pretty much everything ever since January 2009, so it would be a real change if they didn’t do it this time. That’s not to say, of course, that all Republicans have voted against cloture on everything; plenty of Republicans have supported plenty of Obama nominations. But when they don’t support the nominee, they almost always vote against cloture, too.
That doesn’t mean we’ll necessarily get a cloture vote. On both Supreme Court nominations, for example, Republicans did not insist on a cloture vote — but in both cases, they didn’t have the 41 votes needed to prevent the nominations from reaching a final vote. If they don’t have 41 votes this time, they may well want to avoid the cloture vote.
The interesting thing about all of this, as far as the continuing battle over Senate reform is concerned, is that we may very well have a situation where filibuster as a standard operating procedure actually cuts against the interests of Republican senators. That’s true if Republican senators want to preserve the norm that presidents, in most cases ,should be able to have the executive-branch officials they want — but also want to cast a symbolic vote against Hagel.
Now, if Republicans really want to defeat the nomination, they’re better off with the current rules. But my guess is that most of them don’t; their main goals here, which are about scoring points with various constituency groups, are served just as well by a losing fight. Just as Democrats were probably fine with losing the fight against John Ashcroft in 2001.
Senators have plenty of reason to preserve the ability of individual senators to keep their current leverage, or close to it, in nomination fights. But the 60-vote standard on executive-branch nominations serves no one’s interests. Simple majority cloture for executive-branch nominations, including Cabinet-level choices, is a reasonable solution.