If the Democrats are really going to move toward majority-imposed reform in the Senate, it makes sense that they seem to be focused on executive-branch nominations — and, in fact, that’s where action is most justified.
The filibuster was a major factor in legislation during the first two years of Barack Obama’s presidency, but after the 2010 elections, divided government has made filibusters on legislation largely irrelevant. Nothing is going to pass the House without support from a fair number of Republicans — and, therefore, nothing is likely to make it into law without also easily reaching 60 in the Senate.
Republicans have ramped up obstruction of judges, especially district judges — who until 2009 usually were confirmed without controversy and without filibuster. A handful of appellate nominees has been defeated by filibuster, as was true in George W. Bush’s presidency. There’s some some justification for judicial filibusters; after all, we’re talking here about lifetime positions, and there’s an argument that minorities should have some ability to check majorities in some situations.
Other obstruction of judicial nominations includes abuse of the “blue slip” procedures — but filibuster reform won’t get to that.
But executive-branch nominations? Republican obstruction on these is almost entirely unprecedented. Until recently, the norm held that presidents were entitled in normal cases to the personnel they preferred within the executive branch. The Senate certainly has an important role — Senators can use the process to secure commitments on specific issues, especially narrow interests in which they are standing up for their states. And since the Democrats defeated John Tower in 1989 (by a majority vote, not by filibuster), both parties, on occasion, have targeted a handful of nominees to make largely symbolic points, something that was unfortunate but wasn’t a major threat to normal governance.
However, beginning in 2009, Republicans switched from the simple majority standard used for Tower and John Ashcroft in 2001 to a 60 vote threshold; have targeted far more nominees, often for seemingly trivial reasons; and have used “nullification” arguments to refuse to confirm anyone for some agencies explicitly to prevent those agencies from functioning.
None of that is justified. There’s simply no reasonable argument for a minority in the Senate to be able to prevent a president from fully stocking the executive branch with political appointees.
As I’ve said before, the best solution would be for Republicans to give up these filibusters; if not, the best adjustment of the rules would be to shift to simple-majority cloture for executive branch nominations. Either way, Harry Reid is correct to be moving to a confrontation with the Republicans on these choices, and if the GOP doesn’t back down, Democratic Senators will have little choice but to carry through on their threats.