Just over a year ago, Senate Democrats went "nuclear," changing the rules to make it far easier to confirm most presidential nominees – from judges to cabinet secretaries. Republicans, in response, went ballistic, issuing doomsday warnings of the move's consequences. Now, they may well keep the rule change.
Hypocrisy? Or practicality?
Continuing it would certainly go against the grain of Sen. Mitch McConnell’s pledge to restore the Senate to its traditional ways of working. The Republican from Kentucky, who will lead the Senate when the GOP takes control Jan. 6, plans to bring the subject up with his caucus Tuesday.
But the spokesman for the current Senate majority leader, Harry Reid (D) of Nevada, says the nuclear option – which removed the threat of a blocking filibuster from all nominees except for the Supreme Court – was “unequivocally” worth it. The change to simple majority approval smoothed the gears of the Senate, allowing easier confirmation of nominees.
The move allowed Democrats to alleviate the “emergency” in judicial vacancies in federal courts, fill vacancies in the crucial federal circuit court of appeals that hears challenges to executive actions, and confirm key nominees, such as Homeland Security Secretary Jeh Johnson, who was charged with planning the president’s executive action on immigration, writes spokesman Adam Jentleson in an email.
Indeed, the 113th Congress (2013-2014) has had a 95 percent rate of confirmation for judicial appointees – “unheard of,” according to Sarah Binder, a congressional expert at the Brookings Institution.
In short, why wouldn't a majority leader want to keep the Senate's new confirmation rule?
The main concern is that this path could turn into a slippery slope that fundamentally alters the character of the Senate and undermines the Founding Fathers' vision for the chamber. The threat of filibuster – which requires 60 votes to overcome – helps the Senate act in a deliberative way, so it can temper the hot-headed House, which requires only majority votes.
If Senator McConnell keeps the new rule intact, why stop there? Why not apply it to legislation? If a controlling party were to go that far, then the Senate would be little different from the House, where the majority can get what it wants without concern for what the opposing party thinks.
That’s why some Republicans, such as Sen. John McCain (R) of Arizona, want to reverse the rule change and go back to the way things were. But McConnell has said that it’s hard to un-ring a bell. If Republicans change the rule back, they reason, Democrats can just unchange it the next time they are in power.
Thanks in part to the nuclear option, Obama has been able to "stack" federal courts. Nine of the 13 federal appeals courts now have Democratic majorities on the bench. This trend was well on the way before the nuclear option, but the change sped up the floor time for confirmation and cleared some judges that might otherwise have been blocked.
Republicans such as Sen. Orrin Hatch of Utah hope a Republican president in 2016 can reverse the trend, and, if Republicans hold on to the Senate, then it's their turn to "stack" the courts.
“It will fall to the next Republican president to counteract President Obama’s aggressive efforts to stack the federal courts,” wrote Senator Hatch and Boyden Gray in a Nov. 5 Wall Street Journal opinion article.
Reversing the rule change now would amount to “unilateral disarmament” – requiring a 60-vote threshold under a GOP-controlled Senate while Democrats needed to clear only a 50-vote hurdle, they argued.