Congress returns to work this week, and it will have some big issues to tackle. Recently in the Washington Reporter, I argued that Senate Republicans will need to take aggressive steps to clear the nominations backlog. Unprecedented Democratic obstruction is making it impossible to staff the upper echelons of the executive branch. The simple fact is that, with Democrats requiring cloture on literally every nominee, there aren’t enough days in the Senate calendar to fill all the vacancies — a problem that will only get worse as the Senate moves to confirming judges this fall.
Yet one can understand why institutionalist senators might balk at such a move, because it seems that every other week there’s a new call for the Senate to abolish some practice or custom — ignore the blue slip, override the parliamentarian, etc. It’s worth looking at the big-picture choices, in the way that a prudent senator should and would.
“What would this do to my powers as a senator?”
Prudent senators understand that the people of their states sent them to the Senate to represent their interests. Senators, therefore, will seek to preserve their power to effect policy change as individuals and not — as is the case with representatives in the House — as part of a voting bloc.
When nominees were confirmed by unanimous consent, significant power resided in the hands of individual senators who could block it. At first blush, this is a power worth preserving against further efforts to streamline nominations.
The problem is that those days are behind us. If you’re in the minority, the ubiquity of blanket holds makes an individual hold worthless because clearing it doesn’t clear the nominee and is therefore not worth negotiating over. If you’re in the majority, on the other hand, the odds are very high that leadership will respect your hold because rule No. 1 of Senate Republican leadership is “Don’t divide the conference.”
This continued say in confirmations is particularly valuable when you consider that, at some point, President Trump won’t tolerate this level of obstruction and will eventually prorogate the Senate to allow for recess appointments. A streamlined confirmation process is still a confirmation process: The Senate can still stop unacceptable nominees. Not so in a world of recess appointments.
So, a senator who changes the rules to streamline nominations is, in the majority, preserving his individual authority and, in the minority, giving up only something he has already lost.
“What would this do to our powers as a conference?”
An individual senator’s power may not be diminished materially by easing the path on nominations, but what does it do to the power of the minority to throw sand in the gears of the majority? Prudent senators know, after all, that they won’t be in the majority forever.
The fact is that during the Biden years, Republicans were in a similar — if less obdurate — posture. Biden nevertheless got more judges confirmed than Republicans did in the first Trump administration. He still staffed his administration with radicals, top to bottom. Sure, Senators Toomey, Cruz, and Thune were able to take some particularly satisfying scalps — Sarah Bloom Raskin, Saule Omarova, Phil Washington, Gigi Sohn — but these victories were few and far between.
Democrats also simply don’t need political leadership in the executive branch as much as Republicans do. If a Democratic president leaves his agencies on autopilot, the policy results won’t be that much different from what he would have gotten with political leadership. Republicans, on the other hand, need political leadership across the government to bring the bureaucracy in line.
Easing the confirmation process won’t materially change Republican power in the minority while having a disproportionate benefit for Republicans in the majority.
“What would Democrats do in our position?”
A prudent senator also evaluates a rule or practice by asking if it is one that’s likely to apply across the board in the future. So, if Republicans don’t change the rules and, later, give the Democrats a taste of their universal-obstruction medicine, will Democrats abide by these same rules? Of course not. They’ll just ease the confirmation process unilaterally.
This is exactly what happened with the executive calendar filibuster. When Senator Schumer escalated the judicial wars by filibustering President Bush’s well-qualified circuit judges, Republicans cut a bipartisan deal to preserve the 60-vote threshold on judges rather than eliminate it. Senator McConnell later repaid the favor under President Obama by filibustering some of his extreme judges. Of course Senator Reid — apparently disagreeing that sauce which is good for the goose is good for the gander — proceeded to eliminate the filibuster for almost all nominees.
There was a similar dynamic at play with the legislative filibuster. The very senators who were most adamant about it under the first Trump administration then rushed to eliminate it under Biden. (They’re now conveniently filibuster fans again.)
The lesson is this: When Democrats fight to preserve a rule, it isn’t because they want to live under that rule; it’s because they want to apply that rule to Republicans to Democratic advantage. In the future, were Republicans to embrace this level of obstruction against Democrats, they would quickly move to change the rules and bypass Republican objections — regardless of what Republicans say or do today.
“What will Democrats do to retaliate?”
Lastly a prudent senator puts himself in the other guy’s shoes. What will Democrats do if Republicans ease the confirmation process?
They can’t engage in mass obstruction because they’ve done that already. It would be dialing the obstruction up to eleven.
Perhaps they will refuse to play ball on upcoming must-pass legislation like funding the government once the current continuing resolution runs out at the end of the month? President Trump already gave them 9.4 billion reasons to do that. They don’t need another excuse to do what they’d do anyway — that is, instigating a shutdown fight that was probably inevitable.
Democrats will certainly threaten dire consequences next time they’re in charge, just as they did when Republicans asserted their authority under the Congressional Review Act. But what consequences would be worse than abolishing the legislative filibuster? They already tried to do that!
Democratic threats are inherently hollow because they’ve already shown Republicans that process extremism is part of their governing philosophy and not tied to Republican escalation.
In sum, while it makes sense for Senate Republicans to think hard about changing their established practices — even to advance sound goals such as fixing the confirmation backlog — the questions prudent Republicans should ask about a new rule confirm that the smart move is to go ahead and change the rules.