Harry Reid Might Just Have the Votes to Upend the Senate Nomination Process

Harry Reid Might Just Have the Votes to Upend the Senate Nomination Process

Supporters of a plan to change the Senate's rules around presidential appointments think they have the votes to reform the filibuster. If Senate Majority Leader Harry Reid loses one more vote, though, a decision on the highly controversial move could come down to the man pictured above.

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If you haven't been paying attention to the issue, think of it this way: The vote would build a little dam at the start of one of the tiny streams that builds into the massive Amazon of government dysfunction. The dam itself, however, might do some environmental damage.

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Working upstream: The D.C. Circuit Court of Appeals is responsible for reviewing a wide swath of government regulations, lending it disproportionate power in the court system. Appointees are also often viewed as potential Supreme Court nominees, both of which mean that who gets to sit on the D.C. Circuit (as it's known) is often a contested political issue. The president gets to nominate people to sit on the Circuit, subject to Senate approval. The Senate, deeply enamored of filibusters, has regularly filibustered nominees to the bench. There are three open spots at this point, because nominees from Obama, like Caitlin Halligan, have been filibustered. (Halligan removed her name from contention after being filibustered twice.) Remove the ability to filibuster, the Democrats realize, and they can appoint judges to the bench. Appoint judges to the bench, and they can bolster the odds that the Democratic appointees will carry the day when considering challenges to Obama's proposals — or to future presidents.

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It all comes down to getting the votes to change the filibuster process. Last week, Reid decided to bump a vote for a contested appointee to lead the Consumer Financial Protection Bureau until July, after the Senate had potentially resolved legislation on immigration reform. The move appears to be a deliberate decision to set up a fight on reforming the filibuster for appointees. Earlier this week, the administration jumped in, with the White House indicating it would introduce three new appointees to the D.C. Circuit at once, as reported by The New York Times. In adopting the strategy, the paper's Michael D. Shear wrote, Obama "will effectively be daring Republicans to find specific ground to filibuster all the nominees."

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If they choose to do so, Reid will probably decide to erect that dam. Oddly, the move — sometimes melodramatically called the "nuclear option" because it would upend once-standard Senate procedure — can't itself be filibustered, meaning that it can proceed with a majority vote. The Hill reports today that advocates of the move think they can move ahead.

“Reid has 51 votes,” said a liberal advocate for filibuster reform who has met with Democratic senate offices to push for reform. …

If accurate, this count would give Reid little room for additional defections.

It may be more accurate to say that Reid has no room for additional defections. There are 53 Democrats in the Senate and two independent senators who caucus with the party. According to The Hill's count, two of those senators won't support the move: Carl Levin of Michigan, Jack Reed of Rhode Island. Another two — Mark Pryor of Arkansas and Max Baucus of Montana — haven't made their positions on the issue public, but both went against the party on another key issue earlier this year: a compromise on background checks for gun sales. Reid is very, very unlikely to find a Republican to join his cause, meaning that the if Baucus and Pryor object, he needs every vote he's got.

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Unless Reid is content to move forward with 50 votes. In that case, there's a tiebreaker: the President of the Senate gets to cast his vote. If you weren't aware, that person is named "Joseph Robinette Biden" — meaning that Reid would be putting the president in the position of authorizing his vice president to cast the deciding vote in a groundbreaking measure aimed at facilitating Obama's own nominees. This would almost certainly raise some hackles. (Since 1983, the vice president has broken a tie only 19 times. Biden never has.)

Republicans, understandably, aren't happy about the prospect of having a critical D.C. Court with a majority of Democratic appointees. (Worth noting: The 11-member bench is supplemented by six "senior judges" who hear some cases, of whom five were appointed by Republicans.) Just as the Democrats were unhappy when, ten years ago, the Republican plurality in the Senate proposed building a little dam to facilitate nominees from President Bush. At The Atlantic, Norm Ornstein is skeptical about the Democrats' new-found embrace of the idea.

I remain deeply uneasy about a nuclear option, even as I condemn the unprecedented obstructionist tactics employed in the Senate (which were also condemned last week by Bob Dole and lamented by John McCain) and call for deeper reforms, especially on nominations, in Senate rules. The fallout from such a move is unknown but would be substantial and deleterious. It would be far better to return to regular order, and to the use of filibusters as rare events, not routine ones.

Which is a fair point: removing the ability to filibuster noxious nominees proposed by a president and rubber-stamped by a majority from those in his or her party could indeed be deleterious. Whether or not the negative effect of that hypothetical is outweighed by leaving a judicial body understaffed or a federal agency without any leadership almost certainly depends on how you feel today about the president doing the nominating.

The July fight may not materialize. The last time Reid proposed revisions to use of the filibuster, earlier this year, he and Senate Minority Leader Mitch McConnell compromised on a much less robust set of changes. And if Reid loses even one more vote, the idea becomes either unwinnable or politically much more fraught. It's a move of last resort — but that may be where Democrats consider themselves.