Jazz had an item about this yesterday but I frankly can’t believe the subject is still being debated today. Why would you revert to the 60-vote threshold for cabinet and (lower-court) judicial nominees when Democrats have already shown they won’t abide by it when they have a majority?
The filibuster is a prisoners’ dilemma and they defected, so now the strategy of the game changes going forward. What am I missing here?
Senate Republicans huddled with all of their new members for the first time since Bill Cassidy’s Saturday win in Louisiana — but emerged from a Tuesday meeting fractured over what to do with the Senate’s filibuster rules for presidential nominees…
“I saw senior members arguing against themselves,” said Sen. Lindsey Graham (R-S.C.) of the meeting. He favors moving the voting threshold back to 60 votes — but he may be outnumbered.
While no clear consensus emerged inside the Senate’s Strom Thurmond Room, Sen. Mark Kirk (R-Ill.) said the “prevailing view” was to keep things as is…
GOP leadership and their allies sketched out a potential process that would take any decision on the filibuster – whether to keep it at 51 votes or revert to the initial 60-vote threshold – and put it through the Senate Rules and Administration Committee and ultimately a floor vote. Or Republicans could try to chart a third path, perhaps to change the rules only for some nominees.
There are lots of reasons why Republicans might want to stick with 51 votes for confirmation now that Reid has restored that rule. Most obviously, if the GOP holds the Senate in 2016 and a Republican wins the White House, it makes confirming conservative nominees much easier. Remember, it’s a near-lock given the Senate map two years from now that Democrats will increase their share of the chamber. At best, the GOP’s probably looking at a reduced 51- or 52-seat majority in 2017. If you bring back the filibuster rule now, you’re guaranteeing that the Democratic minority will be able to block any nominee they want. On the flip side, in a worst-case scenario where Democrats win the White House and regain the Senate majority, obviously they’ll restore the 51-vote threshold no matter what Republicans do now to make confirmation of President Hillary’s nominees easier. That’s the significance of Reid having already gone nuclear: Having done it once, there’s every reason to believe he’ll do it again. As Ted Cruz notes, in practice this would amount to two different rules for the two parties — a 60-vote threshold whenever the GOP controls the chamber, which helps the Democratic minority, and a 51-vote threshold whenever Democrats control the chamber, which helps the Democratic majority.
The potential drawback in sticking with the 51-vote rule is that, in theory, it makes it slightly easier for Obama to get his nominees through over the next two years. Imagine, for instance, that Loretta Lynch has the support of 55 senators but draws strong opposition from 45 Republicans. Those 45 Republican holdouts lose if the caucus sticks with Reid’s rule and they win if they restore the 60-vote threshold. But that’s a minor problem when you control the majority: McConnell, as majority leader, could always refuse to bring the nomination to the floor and the Senate committee responsible for vetting the nominee (which will have a Republican majority) could always vote her down before the full Senate votes. From now on, if you want to stop an Obama appointee from being confirmed, you simply focus your political pressure on McConnell or on the relevant committee instead of on the Republican caucus at large.
The argument for bringing back 60 votes in spite of all that is … unclear, actually. The main proponent seems to be John McCain, who fears that the GOP would look hypocritical or dishonorable, etc, if they stuck with Reid’s rule now after lambasting him for reverting to the 51-vote threshold last year. But that’s silly: As Ed Whelan notes, in the course of U.S. history, presidential nominees have typically enjoyed confirmation by simple majority. Only in the last ten years has filibustering nominees become normalized. McCain’s hypocrisy point is fair enough, but so what? Hypocrisy is par for the course with the filibuster; liberals who spent six years screeching about obstructionism from the “party of no” in the Senate will rediscover the filibuster as a wise, tempering procedural move if Republicans control the government in 2017. McCain has an … interesting set of values if he’s prepared to tolerate a “different rules for the two parties” approach in perpetuity simply to avoid being called a hypocrite. In fact, I think lefty Ed Kilgore is right about McCain’s deeper motive here: A Senate with a 60-vote threshold will leave centrists like Maverick with much more power over nominees than one with a 51-vote threshold will. Remember the “Gang of 14”? With the filibuster intact, you’re likely to see something like that again — McCain, Graham, Susan Collins, Mark Kirk, maybe Lisa Murkowski all making a deal with a similar number of centrist Dems to vote together on certain nominees, thus guaranteeing that they either meet or fall short of 60 votes. (This assumes that McConnell would agree to bring the nominations to the floor, of course.) With a simple majority rule, centrists become less important. McCain’s just protecting his own turf here.
It’s nutty that they’re even thinking about bringing back the old rule, but it’s the GOP so there you go. One further note via Politico: Supposedly, Republicans are considering allowing a floor vote in the Senate on what the new rule should be — and unlike Reid’s vote to nuke the filibuster, which was done by simple majority, they’ll insist on a supermajority of 67 votes to enact the new rule. How will that shake out? Presumably most Democrats will vote for a 51-vote threshold for presidential nominees, partly because they and Reid set that rule in the first place and partly because reinstating the filibuster for Obama’s nominees will likely benefit tea partiers more than anyone else. (Cruz, Rand Paul, and most of the rest of the GOP caucus, could in theory form a 41-vote bloc that stops a nominee that even McConnell approves of.) But I dunno — if Republicans have changed on this subject overnight, maybe Democrats will too. I can see why Senate liberals might like the idea of bringing the filibuster back, just in case O nominates someone who’s not far enough left for them. Could be an interesting vote on the new rule.