Since the Senate returned from recess seven days ago, it has confirmed a remarkable 13 presidential nominees, all of whom would have been blocked by Republican filibuster just four weeks ago. And it’s moving quickly to confirm 11 more before the Senate recesses for the year. This is what the post-nuclear Senate looks like.
Before Senate Majority Leader Harry Reid detonated the so-called “nuclear option” just before Thanksgiving, President Obama’s nominees could expect a confirmation process as slow as molasses — if they made it through at all. As of October, there were 42 court nominees who still hadn’t been taken up by the Judiciary Committee, let alone the full Senate, and a backlog of 19 nominations for vacancies identified as “judicial emergencies.” Nominees for both executive and judicial positions often had to wait for months or even more than a year for confirmation, leading many to choose to withdraw their names from consideration.
It’s hardly a new problem. A commission on public service chaired by former Fed Chairman Paul Volcker released a report in 2003 identifying what it called the “presidential appointee problem,” noting that “the appointments process is very slow” due to extra vetting from the legislative and executive branches in recent years. It’s gotten much worse since then.
In November, Reid and Senate Democrats voted to change the rules by weakening the filibuster and thus removing the de facto 60-vote threshold needed to confirm judicial and executive nominees (they made an exception for Supreme Court picks). Republicans have thrown a fit, but Democrats say the spate of post-nuclear confirmations show exactly why the rules needed to change.
Take Jeh Johnson, whom the Senate confirmed Monday night to lead the Department of Homeland Security. The Senate first voted to end debate on his nomination via cloture, where Johnson received 57 votes to 37 — not enough under the old rules. But thanks to the new rules, the process moved forward and moments later, the Senate voted on the actual confirmation, where Johnson received 78 votes to 16. That suggests that there were at least 20 Republicans who wanted to confirm Johnson, but would have blocked his nomination for one reason or another if they still could.
The post-nuclear Senate also made short work of other top-tier nominees Republicans had been obstructing, like Patricia Millett to sit on the powerful D.C. Circuit Court of Appeals and Mel Watt to head the Federal Housing Finance Agency.
And those in the next batch include John Koskinen, picked to be commissioner of the Internal Revenue Service, a spot Republicans were sure to make hay of. And perhaps most importantly of all, Janet Yellen, who will become arguably the most powerful woman in the world when confirmed to head the Federal Reserve.
Senate Minority Leader Mitch McConnell vowed revenge when Democrats changed the rules, but so far the retribution has been more annoying than genuinely painful, making senators stay up late to vote at 2 and 7 a.m.
Republicans plan to use their caucus lunch Tuesday to plot their next move. They could continue running out the clock, and keep the Senate in session through Christmas, but neither side really wants that.
They’ve also threatened to obstruct committee business, but lacked unity among GOP ranking members for a real boycott, since many think committee business is too important to be put on hold for political reasons. Another option would be to send all pending nominations back to the White House at the end of the year.
Regardless of what they chose to do, Republicans can only delay things momentarily. All of Obama’s nominees that Reid moved forward will be confirmed relatively shortly.
That’s good for Democrats, but their fortunes will almost certainly be reversed when Republicans eventually take control of Senate, whether that’s next year or sometime in the distant future.
In the grand scheme, the rules change will be a wash politically. But it’s a win for anyone concerned about the government and courts’ ability to function without leadership.