‘Nuclear’ move opens window for Obama on nominations
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.