‘Nu­clear’ move opens win­dow for Obama on nom­i­na­tions

The Washington Times Daily - - Front Page - BY BEN WOLF­GANG

Af­ter the bomb may come the flood. By in­vok­ing the “nu­clear op­tion” last week, the Demo­crat-con­trolled Se­nate has given the White House a clear but tem­po­rary path to in­stall ju­di­cial and ex­ec­u­tive nom­i­nees who oth­er­wise may have faced stiff op­po­si­tion from Repub­li­cans.

There al­ready are signs the Obama ad­min­is­tra­tion may roll out nom­i­nees at a rapid rate. Within hours of the Se­nate’s “nu­clear” move Thurs­day — which dra­mat­i­cally changed cham­ber rules and re­moved the tra­di­tional 60-vote thresh­old for pres­i­den­tial ap­point­ments — the White House an­nounced eight new nom­i­nees to fill open posts on D.C.’s Su­pe­rior Court, in U.S. at­tor­ney’s of­fices and else­where.

An­a­lysts say it’s un­clear whether the ad­min­is­tra­tion will “flood” the Se­nate with prospec­tive judges, at­tor­neys and ex­ec­u­tive

of­fi­cials, but they agree that it’s a near-cer­tainty the White House to some de­gree will take ad­van­tage of its new­found win­dow of op­por­tu­nity be­tween now and the Novem­ber 2014 con­gres­sional elec­tions. Those con­tests could re­sult in Repub­li­can con­trol of the Se­nate, a de­vel­op­ment which would end the ad­min­is­tra­tion’s abil­ity to get nom­i­nees con­firmed quickly and eas­ily.

“I’m not sure there will be a flood, but cer­tainly they’ll feel much more com­fort­able push­ing out some peo­ple they may have had some ques­tion about,” said Steve Bil­let, di­rec­tor of the mas­ter’s de­gree pro­gram in leg­isla­tive af­fairs at Ge­orge Wash­ing­ton Univer­sity. “Fifty-one votes is a whole lot eas­ier to get than 60 votes un­der the cur­rent en­vi­ron­ment. This re­ally ex­pands the pres­i­dent’s power, for all prac­ti­cal pur­poses, and it puts him in a po­si­tion where if he wants to get some­one on the ap­pel­late court, he’s got a pretty clear path to do­ing it, just like his ex­ec­u­tive ap­point­ments.”

Not sur­pris­ingly, Repub­li­cans and other crit­ics of the pres­i­dent have painted the Se­nate rules change as an ad­min­is­tra­tion power grab.

Some have sug­gested it amounts to a po­ten­tial “court-pack­ing” plan by Mr. Obama, while also giv­ing the com­man­der in chief the abil­ity to get con­tro­ver­sial fig­ures into pow­er­ful ex­ec­u­tive posts with min­i­mal op­po­si­tion from the mi­nor­ity party.

But the White House and Demo­cratic lead­ers view the sit­u­a­tion much dif­fer­ently.

In an­nounc­ing the move, Se­nate Ma­jor­ity Leader Harry Reid pointed to the “un­prece­dented ob­struc­tion” by Se­nate Repub­li­cans in op­pos­ing Mr. Obama’s nom­i­nees.

Since the pres­i­dent came to of­fice in 2009, Mr. Reid says that 79 of his nom­i­nees have been fil­i­bus­tered in the Se­nate, com­pared to just 68 in all other ad­min­is­tra­tions com­bined.

Those fig­ures, how­ever, are in­flated and few of the 79 cases would qual­ify as an ac­tual fil­i­buster. In this Congress, Mr. Reid has filed clo­ture — which ends de­bate and moves a nom­i­nee or a bill to a vote — on 18 nom­i­na­tions, with just five of them be­ing blocked by Repub­li­cans.

From 2009 through 2012, Mr. Reid filed clo­ture on 54 nom­i­na­tions, and only seven of them were fil­i­bus­tered, ac­cord­ing to the Con­gres­sional Re­search Ser­vice.

In mak­ing its case against the GOP, the White House has de­cried the fact that there are more than 90 ju­di­cial va­can­cies, com­pared to 50 when the pres­i­dent as­sumed power nearly five years ago. Fill­ing those posts now will be much eas­ier, though it re­mains to be seen just how ag­gres­sive the ad­min­is­tra­tion will be.

“I think there’s no doubt that the kind of his­toric lev­els of ob­struc­tion­ism that we’ve seen in the Se­nate when it comes to the con­fir­ma­tion process prob­a­bly has been dis­cour­ag­ing for a lot of peo­ple, highly qual­i­fied in­di­vid­u­als who want to serve,” White House press sec­re­tary Jay Car­ney said last week, a day af­ter the nu­clear op­tion was in­voked.

“It’s cer­tainly a wel­come de­vel­op­ment that highly qual­i­fied in­di­vid­u­als won’t be held hostage to that kind of par­ti­san and ide­o­log­i­cal ob­struc­tion­ism again.”

In­deed, with that “ob­struc­tion­ism” — a char­ac­ter­i­za­tion Repub­li­cans ve­he­mently dis­pute — off the ta­ble, the ad­min­is­tra­tion could ad­dress each of the more than 90 ju­di­cial va­can­cies be­tween now and next Novem­ber, said Jay Seku­low, chief coun­sel at the Amer­i­can Center for Law and Jus­tice.

“I think what they would do is try to fill ev­ery one of them as quickly as they can. This is noth­ing but a court-pack­ing plan,” he said. “I think the pres­i­dent is go­ing to re­make the ju­di­ciary.”

The Se­nate rules change will not im­pact the most im­por­tant ju­di­cial ap­point­ments: those to the U.S. Supreme Court.

Be­yond the bench, there are other, prac­ti­cal ram­i­fi­ca­tions of the Se­nate ac­tion. Prospec­tive pub­lic of­fi­cials with a his­tory of con­tro­ver­sial po­si­tions or state­ments have, un­til now, re­ceived in­tense scru­tiny from the mi­nor­ity party in the Se­nate.

That time-tested sys­tem led to lengthy con­fir­ma­tion pro­cesses for Mr. Obama’s pick to head the En­vi­ron­men­tal Pro­tec­tion Agency, Gina McCarthy, and oth­ers. Repub­li­cans also have been able to use the fil­i­buster to ex­tract in­for­ma­tion or pol­icy clar­ity from the White House, a tac­tic used ear­lier this year by Sen. Rand Paul.

The Ken­tucky Repub­li­can held up a vote on CIA Di­rec­tor John O. Bren­nan un­til the ad­min­is­tra­tion an­swered ques­tions about its le­gal au­thor­ity to use drones to tar­get Amer­i­can cit­i­zens on U.S. soil.

Nom­i­nees and their po­si­tions still will be ex­am­ined by Repub­li­cans, po­lit­i­cal pun­dits and the me­dia, but there is now lit­tle abil­ity to stop their con­fir­ma­tions, pro­vided the White House can keep Se­nate Democrats on board.

“I think peo­ple still are go­ing to be looked at and scru­ti­nized. But when you have 53 [Demo­cratic] se­na­tors who are go­ing to vote your way, what does the look re­ally mean?” Mr. Seku­low said.

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