Tuesday, July 9, 2013

An End Game on Executive Branch Nominations?

I wrote yesterday over at PP about what, from my perspective, is the very good news about Senate reform -- it appears that Harry Reid and the Democrats are now planning to decouple judicial and executive branch nominations, with the current plan to threaten to go nuclear only on the latter. That plan appears to be further confirmed in a NYT story today. It now strongly seems that Showdown July in the Senate will be primarily, and perhaps exclusively, about exec branch nominations -- indeed, while the three DC Circuit appeals judges are going to be moving through committee, there are hardly any judges remaining ready for the Senate floor. 

Long-time readers will know that I support simply-majority cloture for exec branch nominations -- that is, leaving the hold/cloture procedures in place, but making it impossible for a minority to permanently prevent confirmation. Why are holds respected? Well, to some extent it's about mutually protecting every Senator's interests; holds (on exec branch nominations) give Senators leverage not over other Senators, but over executive branch departments and agencies, so the practice of holds is good for the Senate in general. To some extent, however, holds are respected because they are threats to filibuster once something reaches the floor. Since one Senator can, basically, force a cloture vote (and make trouble in other ways), and cloture votes are inconvenient for the majority, the majority respects holds in order to use floor time more efficiently. 

So, basically, if via the "nuclear option" the Democrats rule out filibusters of any kind on exec branch nominations, the majority leader could nevertheless continue to honor holds...or not. There would still be a positive reason to do so (that is, increasing the leverage of individual Senators), but the negative reason would be mostly -- but not entirely -- gone. Not entirely, because a Senator could still threaten to make mischief in unrelated areas (such as objecting to routine procedures). 

What I'd rather have happen is a compromise that retained cloture, exactly as it is, but with the simple majority threshold. Unfortunately, that seems extremely unlikely -- even though, as I've argued many times, the minority party should be perfectly happy with that arrangement, because they really don't care about defeating most exec branch nominees.

If I had to guess, by the way? I'm guessing substantial Republican retreat, with that being enough to stall majority-imposed reform. EPA and Labor get confirmed, along with, perhaps, either NLRB or CFPB. They probably make happy noises on at least one, and perhaps even all three, of the DC Circuit picks. So they still get one, or maybe two, nullifications going forward, and with that the most reluctant Democrats decide that it's not worth going through with destroying the filibuster.  

And that's not such a bad solution! 

Again: the proper follow-up to all of this would be real exec branch nomination reform, focused not only on removing the supermajority hurdle but also on massively reducing vetting on both ends of Pennsylvania Avenue. It's what Barack Obama should be pushing for, but so far, no sign of it.


  1. Perhaps I'm absentmindedly missing when this turn occurred, but I had always thought that filibuster reform was still in play for legislation too. Of all your resistance about ending the filibuster, I've always found your caveats about lifetime judicial appointments understandable, so the exec vs judicial appointment distinction makes plenty of sense.

    But by this same logic, shouldn't senators be willing to entertain ending or paring back the legislative filibuster threshold, if they're already entertaining ending the exec nomination one? Legislation is reversible and always modifiable, and it's most clearly understandable as something that should be subject to majority rule (within constitutional limits of minority rights etc.).

    1. My position on legislative filibusters is that the best solution is a middle ground, making filibusters possible but far less common, but that it's very difficult to figure out how to actually enact a rule that does it.

      But either way, it's very unlikely that we'll get legislative filibuster reform during divided government; there's just no incentive to do anything about it since you need 60+ to have a shot at actually passing anything anyway.


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