How Long Until Senate Leaders Resort to the Nuclear Option on Nominations?

The Senate’s nuclear-option armistice is close to collapsing—but not quite yet.

Senate Democrats bristled at how Republicans blocked confirmation votes last week on two of President Obama’s nominees: Rep. Melvin Watt, D-N.C., to head the agency overseeing Fannie Mae and Freddie Mac, and Patricia Millett to serve on the U.S. Court of Appeals for the District of Columbia Circuit.

Majority Leader Harry Reid hasn’t ruled out the option of trying to change the Senate’s rules to ban filibusters against nominations and allow for confirmations on a simple-majority vote (the so-called nuclear option), leadership aides say. Even President Pro Tempore Patrick Leahy of Vermont took to the floor recently to say that if Republicans do not reverse themselves, “drastic” measures should be taken.

It is in this environment that the highest-profile nomination of the fall approaches. Janet Yellen, Obama’s pick to succeed Ben Bernanke as the head of the Federal Reserve Board, will face a Senate Banking Committee hearing on Nov. 14. Yellen, nominated in October after a liberal revolt against Obama’s presumptive choice of Lawrence Summers, has been spending time on Capitol Hill, meeting privately with senators ahead of her hearing.

But Yellen’s nomination is not likely to be the Enola Gay in the nuclear-option battle. “I don’t think this is the right line to draw in terms of making a political statement,” said Sen. Jack Reed, D-R.I. Added Dwight Fettig, former staff director to Banking Committee Chairman Tim Johnson, D-S.D.: “Given the importance of the Fed chairmanship, expected broad support for Yellen, and desire of both parties to avoid further market uncertainty following the shutdown and debt-limit brinkmanship, I don’t believe either side will want to use this nomination to wage a political fight.”

Republicans have plenty of pointed questions for Yellen on monetary policy, but they’re still predicting that she will get the 60 votes she’ll need to overcome the holds against her, including one from Sen. Rand Paul, R-Ky., who wants to see an audit of the Fed. Banking Committee member Bob Corker of Tennessee senses there’s no appetite among fellow Republicans to block her. “I shouldn’t say things like this,” he said. “But, yeah, [she will get 60 votes.]”

Sen. Richard Shelby, the former top Republican on the Banking Committee and a current panel member, voted against Yellen as vice chairwoman. Even after a “courteous” meeting with her, Shelby said he has some problems with her nomination. But will that be enough to vote against cloture and maybe ignite the nuclear spark? “I believe, at the end of the day, the Federal Reserve nominee—unless barring something awful happening—should have probably an up-or-down vote,” Shelby said.

Yellen can expect to face questions about her time as head of the Federal Reserve Bank of San Francisco, whether her views are too Keynesian, and whether she favors the Fed’s unemployment mandate over its inflation mandate. Senate Republicans cite inflation and quantitative easing as top worries. “There is concern at this point about the monetary easing the Fed’s going through and whether she’s going to be careful so that we don’t get into an inflationary problem down the road,” said Sen. John Hoeven, R-N.D.

Democrats are broadly supportive of Yellen. Some, especially Sen. Elizabeth Warren of Massachusetts, will want to hear Yellen’s views on the Fed’s regulatory role, but given recent Democratic discipline it would be surprising to see defections. So, if Yellen has the votes to overcome Republican holds, what sense does it make to flip the nuclear switch over her nomination? aides ask. “We’re not going to preemptively go nuclear,” a Senate Democratic leadership aide said.

But that doesn’t mean the debate over Senate rules has been put on hold. “I think Mel Watt’s nomination has already reopened that, and [weighing the nuclear option] is already well underway,” said Sen. Jeff Merkley, D-Ore., a Banking Committee member who supports Yellen and is one of the Senate’s leading proponents of going nuclear.

Indeed, Watt and Millett could soon have company as nominees unable to win 60 votes to overcome filibusters. Arguing that the D.C. Circuit has too light a workload and that judges appointed by a Democratic president would adopt a liberal view on the bench, Republicans have signaled they will block Obama nominees Cornelia T.L. Pillard and Robert L. Wilkins as well. Reid’s office said a cloture vote on their nominations could come as soon as Monday, but Republicans are skeptical of the nuclear saber-rattling, reasoning that the Democrats know they could lose their majority some day.

“You can only run that drill so many times,” Corker said. “I’m sorry. I can’t take it seriously.”

If Reid follows through with another showdown over nominations, it would be the first time since a July truce, brokered in part by Sens. Chuck Schumer, D-N.Y., and John McCain, R-Ariz., after a rare, all-senator meeting in the Old Senate Chamber. The way Democrats see it, qualified nominees are entitled to a simple-majority vote, and Republicans are picking on nominees whose agencies or positions they fundamentally disagree with.

Republicans sound weary of the fight and are ready to find out whether Democrats are bluffing. “It’d be really bad form,” Corker said. “After all that occurred this summer, to then come out and say—you might as well, if every time someone has concerns about nominees the nuclear option comes up, you might as well be at a 51-vote threshold. If they do it, they do it.”