Appointment-palooza in the Senate? Don't Bet on It
Liberals shouldn't expect the 'nuclear option' to end Senate obstruction of Obama's nominees.
There are 231 presidential nominations waiting to be confirmed by the Senate. Now that Democrats have changed the filibuster rules—last week's invocation of the "nuclear option"—those are all going to sail through, right? The Senate will be one non-stop confirmation party until every federal judicial chamber, Cabinet-agency desk, ambassadorship, and oversight board is occupied by a liberal Obama appointee! Flowers will bloom and music will play in the Capitol as Harry Reid presents "Appointmentpalooza"!
While the White House and Senate Democrats anticipate seeing a handful of high-profile appointees confirmed in the next month, even advocates hailing the new rules don't expect the "nuclear" change to provoke a wholesale thaw in the appointment process. That's because the filibuster—the threat to extend debate on a motion (which previously required 60 votes to shut down, and now requires just 51 for most nominations)—wasn't the only bottleneck in the long and convoluted process of getting presidential appointments through the Senate. So while Reid, the majority leader, chastised Republicans for "deny[ing] the president his team," President Obama's bench isn't likely to be suddenly flooded with new players. And liberals expecting the nuclear option to be a panacea for ending obstruction are likely to be disappointed.
According to statistics kept by the White House, the pending nominations include 178 executive nominees and 53 judicial nominees. Reid pulled the "nuclear" trigger out of frustration that three appointees to the D.C. Circuit Court were being blocked: Patricia Millett, Nina Pillard, and Robert Wilkins. Immediately after changing the rules, Reid successfully advanced Millett's nomination to a floor vote—but she still hasn't been confirmed, because nothing is that easy in the Senate. In December, Democrats hope to move those three through to confirmation, along with proposed Federal Reserve Chair Janet Yellen, Homeland Security Secretary Jeh Johnson, and Federal Housing Finance Agency head Mel Watt. (Watt has been waiting more than 200 days to be confirmed, the second longest of any executive nominee currently on the floor.)
But the fact that those six nominees could take a month to clear the Senate, even without a 60-vote threshold, is a good indication of the time it could take to clear the rest of the backlog. "Democrats sold this [change] as 'We need to speed things up to make the Senate work,' but nothing they did speeds anything up or makes anything faster," Don Stewart, the deputy chief of staff to Minority Leader Mitch McConnell, told me. "The notion that this will make the Senate run better or faster is a complete and utter falsehood."
McConnell, of course, bitterly opposed the rule change. But Democrats and filibuster-reform advocates don't totally disagree with Stewart. The fact that they don't have the votes to block a nominee at the end of the process might give Republicans less incentive to erect time-consuming obstacles along the way, they say. But it doesn't get rid of the mechanisms for doing so.
"The question is, are nominations going to move any more quickly now that [the majority doesn't] have to worry about getting a 60-vote supermajority at the end of the game?" says Sarah Binder, a Senate expert at George Washington University and the Brookings Institution. The answer, she said, remains to be seen. "There are still some elements built into committee practices that give power to individual members of the minority."
Most people, let's face it, are not that interested in Senate procedure, myself included. But the filibuster has gained popular traction as an issue because it symbolizes, to Democrats, the way Republicans who object to Obama on purely partisan grounds have tried to prevent him from getting his way. Republicans dispute the idea that Obama has faced more than the usual level of obstruction, and the facts—including what constitutes a filibuster and how to measure obstruction—are confusing and open to interpretation and spin.
But whether Obama will, in fact, get to put his "team" in place is an important question. As Jonathan Chait has noted, the president has largely given up on getting legislation through Congress; his legacy now rests on what his executive agencies will be able accomplish, from labor-law implementation to environmental regulation, and what precedents his judicial nominees will set over the course of their lifetime appointments. If you're interested in this question, it's worth understanding how it all works—and doesn't work—and why it will still be a tough and lengthy process for Obama to get all his appointees through.
1. Many vacancies don't have a nominee. It seems obvious: You can't appoint someone to a position if you don't suggest someone for the job. But of the 112 current judicial vacancies, more than half—59—lack a nominee, according to the liberal Alliance for Justice. Republicans often cite this fact to claim that it's really the Obama Administration leaving posts unfilled. But Democrats blame Republicans: In the case of judicial nominees, it is customary for the administration to secure the approval of the senators from the nominee's home state. In the current climate of partisan noncooperation, this consultation is often denied. Liberals suspect that, in the words of Brookings Institution fellow Russell Wheeler, "Republican senators are, on an unprecedented scale, objecting to nominees floated by the administration, insisting on nominees unacceptable to the administration, or simply slow-walking the process—and threatening to exploit their ability to deny hearings to nominees from their states if the administration nominates someone to whom they object."
2. Many nominees are still in committee. Of the 231 nominees proposed by the White House but not yet confirmed by the Senate, 76 have been voted out of their respective committees; the rest are waiting for a committee to approve them. (Nominees go through different committees depending on their final destination; judges, for example, go through the Judiciary Committee.) Since Democrats are the Senate majority, they are also the majority of members of each committee, and getting a nominee out of committee requires a simple majority vote. So what's the hold-up?
This is where the consultation with red-state senators comes in. Each home-state senator is sent a "blue slip" with the potential nominee's name on it, and the nominee doesn't come to the committee for a hearing until both "blue slips" are returned. In many cases, Republicans simply don't turn in their slips. Senator Patrick Leahy, who chairs the Judiciary Committee, could ditch this custom—many filibuster-reform advocates are demanding it, noting the large number of years-long vacancies in states like Texas—but he hasn't so far. The blue-slip problem is unaffected by the recent rules change.
3. The nominees on the floor can still take a looong time to get confirmed. Once a nomination is voted out of committee, the majority leader can bring it up for a confirmation vote if the Senate gives its unanimous consent. But if a single senator objects, the consent isn't unanimous. These one-senator blockades are known as "holds" and can be totally secret. McConnell's staff will tell Reid's staff that consent won't be given for a particular nominee, and unless the objector goes public, Democrats won't know who objects or why. Without unanimous consent, the only way for Reid to get to a vote is to invoke cloture. Until recently, that cloture vote took 60 votes to succeed; thanks to Reid's change last week, it now takes only 51 votes. (This is where the confusion about the definition of "filibuster" comes in. Republicans point to the relatively few occasions on which Democrats have failed to get 60 votes after invoking cloture; Democrats consider a nominee to have been blocked if Reid is forced to invoke cloture because consent was denied.)
Post-nuclear option, these types of holds will no longer be an obstacle to most nominations. (Remember, 60 votes are still required to cut off debate on legislation and for Supreme Court nominees—although a Supreme Court nominee has never been filibustered.) No matter how many Republicans object, Reid can proceed to confirmation by invoking cloture, as long as most Democrats support him. But it's still a cumbersome process. After cloture is invoked, there's a day-long waiting period, and then a set number of hours set aside for "debate." (Most of the time, senators don't actually debate or even show up during these periods; they just wait for the clock to run out.) It varies according to the type of nominee, but it can be up to 30 hours—which, since the Senate only meets for a few hours and not every day, means it can easily take a week to get a single nominee from the floor through to confirmation. That's why, while Reid successfully invoked cloture on Millett's nomination last week, she isn't yet a judge—the Senate left town for Thanksgiving before her waiting and debate period could elapse and the final vote could be held to confirm her.
So there you have it: More than you probably wanted to know about confirmations and Senate procedure. It's a topsy-turvy world in which most "filibusters" aren't actually filibusters, most "blocks" are really delays, and "blue slips" may be a bigger problem than the one Harry Reid solved by going nuclear.
The upshot is this: The nuclear option removed one big bottleneck from the confirmation process, the minority's ability to prevent nominations by invoking the 60-vote threshold. But two other big bottlenecks—the administration's difficulty putting up nominees for red-state judgeships and getting them through committee—remain. And even when those are surmounted, the process will still be lengthy and cumbersome. Nominations may well be the key to Obama's second-term agenda, but they're not about to suddenly sail through the Senate.