Reconsidering the nuclear option

As has been clear for a while, the Senate nomination/confirmation process is completely broken. The last few weeks on this front have been a national embarrassment.

Republicans won’t allow votes on Consumer Financial Protection Bureau nominees. Republicans won’t allow votes on Independent Payment Advisory Board nominees. Republicans are filibustering qualified judicial nominees creating a vacancy crisis on the federal bench. Republicans intend to block the new Commerce Secretary nominee. Top banking regulatory offices are empty because Republicans want them to be, and Treasury Department offices related to financial institutions, economic policy, and tax policy are also vacant, again by GOP design.

Jonathan Bernstein argued yesterday that we’ve reached the breaking point, and it’s “long past time” for Senate Democrats to “threaten to go nuclear.”

Yes, there have been party-wide filibusters of executive branch nominees in the past, but it’s almost always been about specific people who the president could withdraw and replace. Holds placed by individuals or small groups of Senators in order to get leverage over a specific grievance — usually some home-state interest — are common, and every Senator has an interest in preserving that procedure, whether outsiders like it or not. But a party-wide decision to simply not confirm anyone for a variety of positions? I’m not sure if it’s ever been done before by a majority party during periods of divided government, let alone by the minority party.

What Reid and the Democrats should be doing is threatening dramatic action: eliminating supermajority rules for executive branch confirmation. The truth is they should probably threaten to just get rid of filibusters altogether. But that’s a tall order. For now, it should be doable to get every Democrat to support making it possible to confirm executive branch nominations with a simple majority of Senators. Doing so would simply return the Senate to how it was governed throughout its history up until the Obama presidency. Dems would simply be threatening to restore the old norm that while the Senate could influence policy, the president was, barring exceptional circumstances, entitled to the person he wanted to carry out that policy.

In late January, after months of behind-the-scenes talks about changing the way the Senate does business, Senate Majority Leader Harry Reid (D-Nev.) and Minority Leader Mitch McConnell (R-Ky.) reached a gentlemen’s agreement of sorts. As part of the deal, both promised to take the so-called “nuclear option” off the table, effectively forever.

But the same deal was supposed to feature a GOP pledge to “exercise restraint.”

Under the circumstances, Bernstein makes the case that “going nuclear” should be “a credible threat.” Here’s hoping Senate Dems agree.