http://www.politico.com/story/2014/09/senate-confirmation-battles-111402.html?hp=t1&cmpid=sfBy BURGESS EVERETT | 9/28/14 6:06 PM EDT Updated: 9/28/14 7:07 PM EDT
Prepare for the return of the confirmation fight.
If Republicans capture the Senate majority in November, their sway over prominent judgeships and Cabinet vacancies — potentially including a new attorney general — will become one of the GOP’s primary leverage points against President Barack Obama.
But first the GOP must decide whether to adopt Senate Democrats’ bellicose tactic to allow approval of most executive branch nominees by a simple majority vote. The rules change to the filibuster was implemented by Senate Majority Leader Harry Reid (D-Nev.), but it could now come back to bite him.
Republicans left Washington already divided over how they would approach this critical element of majority rule. GOP senators are undecided on whether to restore the previous 60-vote threshold for all presidential nominees except those to the Supreme Court or leave the filibuster hurdle where Democrats set it, at a simple majority.
And, perhaps surprisingly, some Republicans say they aren’t bent on revenge.
“I will work very hard to go back to 60 votes,” said Sen. John McCain (R-Ariz.), who boldly predicts a Republican Senate would process Obama’s nominees “more rapidly than [Democrats] do today.”
While the rules debate is often cast as an arcane Beltway topic, the confirmation process has wide and lasting impact on how laws are implemented and which judges oversee prominent cases.
The Democrats have used their new president-friendly rules package, implemented unilaterally in November via the “nuclear option,” to reshape the nation’s courts into a more liberal-leaning entity, an impact Sen. Jeff Sessions (R-Ala.) called “thunderous.” And if Republicans take the Senate in the midterms, Democrats are likely to try to jam through a successor to Attorney General Eric Holder in the lame duck for fear of how a GOP Senate might handle that critical nomination.
Weeks before the election, Republicans are split over whether to restore the supermajority voting requirement for nominees, which the GOP has uniformly argued is critical to empowering the minority, regardless of which party is in control. Changing the rules back would make it more difficult for Obama’s presidential nominees to win confirmation in the short term and avoid charges of hypocrisy, given how loudly Republicans have complained about Democrats watering down the filibuster.
But other Republican senators argue that it makes sense to leave the threshold where it is rather than risk changing the rules and invite immediate scrutiny of GOP governance. As a bonus, this decision could make it that much easier for a future Republican president to get his or her Cabinet in place.
“There’s going to be a lot of resentment over the fact that the president jammed through so many appointments when they broke the rules. And there obviously will be people who would think that there ought to be an opportunity for us to get a chance to even that ledger,” said Sen. John Thune of South Dakota, the No. 3 GOP leader. “Hopefully, we resolve it in a way that preserves the integrity of the institution but also recognizes the fact that because they broke the rules, they were able to jam through a whole bunch of nominees.”
But more is at stake than just raw political power. Republican senators are wary of again rewriting Senate rules given that they’ve spent nearly a year talking about how short-sighted it was for Democrats to alter the Senate’s fabric. Legislative action in the chamber was already declining last fall after the government shutdown, but the Senate’s productivity plunged further after the “nuclear option” was invoked in November.
“We should get it back to where it was,” said Sen. Orrin Hatch (R-Utah). “You can see the destruction that has happened around here.”
Hatch and other institutionalists, like McCain, have vocally argued that moving the threshold back to 60 votes would make the Senate function better. Retiring Sen. Carl Levin (D-Mich.) and red-state Democrats Joe Manchin of West Virginia and Mark Pryor of Arkansas agreed, voting against the rules change last year.
Should Pryor win reelection, he and Manchin, along with Senate veterans like McCain, could sew up support for reversing the filibuster rule.
But a less vocal group of Republicans is privately making the case for leaving the rules as is, both for a future GOP president’s benefit and because kicking off a new GOP Congress with an arcane procedural debate is not especially appetizing for Republicans who want to set a new tone in Washington. Besides, the debate is in some ways symbolic: A GOP Senate could simply use Senate committees to bottle up liberal nominees it dislikes, preventing them from ever getting to the floor.
“If they gain the majority, there are many ways they can block any nominee they wish should they choose to, even if they don’t change the rules. But I don’t think they are going to get the majority, so it’s a moot point,” said Sen. Chuck Schumer (D-N.Y.), who said Democratic activists are aware that the fate of Obama’s nominees will be decided at the ballot box this fall.
Granted anonymity to discuss party strategy, one Senate Republican argued that Democrats had erred by including lifetime judgeships in their rules change — a decision that will be felt in the nation’s powerful appeals courts for decades. That Republican said life appointments will be much more frugally doled out under a GOP majority.
Others are keeping score in different ways. Sen. Jim Inhofe (R-Okla.), who stands to gain a plum chairmanship in the majority, said Republicans should determine how many liberal presidential confirmations Democrats gained by changing the rules and push through an equal number of conservative nominees whenever the GOP again controls both Congress and the White House.
“We ought to be able to offset all of those with some very constitutional appointees and get the ones that Democrats wouldn’t like and go ahead and ram them through the same way. Simple majority,” he said.
Regardless of what Republicans do with the rules, a GOP majority would immediately push the ideology of Obama’s choices for the courts and Cabinet positions to the right. Unless he were looking for a fight with the Senate, Obama would most likely avoid nominating people without bipartisan appeal.
“It obviously gives us additional leverage to determine who the nominees are going to be and negotiate on the front end,” said Senate Minority Whip John Cornyn (R-Texas). “There’s going to be some more earnest and intense discussions about who those nominees are.”
Even then, Democrats doubt that Republicans would allow anyone other than the least controversial nominees to get through. They’ve heard the Republicans’ rhetoric over the past year and are warning voters of impending retribution against the president.
“They clearly have no interest in letting Obama populate his administration. If you think that’s bad today, it will be even worse if they have control,” said Sen. Chris Murphy (D-Conn.).
Cornyn said that when he hears this Democratic allegation, “the little boy who cries wolf comes to mind.”
But Republicans don’t deny that confirmation fights would be back in vogue if they win the Senate — and some of the president’s nominees simply won’t get through, regardless of what the GOP decides to do with the Senate rules.
“There are some who really don’t deserve to be in those positions,” Hatch said.
