First, stop the filibusters. Photographer: Brendan Hoffman/Getty Images
First, stop the filibusters. Photographer: Brendan Hoffman/Getty Images

Why are “holds” on nominations less valuable in the Senate these days?

If you think it’s because of majority-imposed reform that eliminated supermajority cloture on nominations, you’re wrong.

That’s what Roll Call’s Niels Lesniewski says, after complaints from Senators Rand Paul, John McCain and other Republicans. In fact, the real guilty party destroying the hold in the Senate is … yup, the Republicans. Here’s the story:

Holds, to begin with, are individual objections to a nomination. The majority leader respects holds for two reasons. One is just that it’s in each individual senator’s interest to retain his or her influence, and so senators are willing to allow one another to stall something because it means their own opportunity for leverage will be preserved. The other reason is procedural. A hold is a threat to filibuster, backed by Senate rules that allow even a single senator to force significant delays and to take up scarce Senate floor time for something that would otherwise be quickly disposed of. That is: Most nominations have traditionally been brought up by unanimous consent and approved by a voice vote, usually with minimal or even no debate; indeed, many nominations are brought up and approved in bulk with only one unanimous consent request. A hold is a threat to derail that.

Because holds have traditionally been about protecting the interests of individual senators or small groups of senators, it usually has been possible for the majority to defeat the maneuver by getting cloture, even when cloture needed 60 votes. Because that’s costly, it’s possible for a hold to kill a nomination, or at least for one senator to gain enough leverage through a hold that she can bargain for something. None of that should change with a switch from 60-vote cloture to simple majority cloture (indeed, when I used to advocate for executive branch nomination reform, I argued for going to simple majority cloture and explicitly preserving holds).

If it’s not majority-imposed reform that has weakened holds, what has?

Holds are threats to filibuster. Again, the procedural threat is of a filibuster, forcing the majority to go through the cloture procedure. But if the minority party is already maximizing delay on every single nomination, then there’s nothing more any individual senator can do to further delay things. Which is exactly what Republicans have been doing, with minor exceptions, during this session of Congress.

Beyond that, the truth is that holds won’t work if they’re really just about party-wide opposition to nominations. As I said: every senator has an interest in preserving leverage of individual senators. But the majority party has no interest in preserving the ability of the minority party to block whatever they want. At best, those in the majority are willing to accept it because it allows them to preserve that individual senator influence. If, however, the minority party votes as a block at all times, then the majority has little choice but to impose majoritarian rules (as Democrats did back in November).

If Paul and McCain really want to preserve holds, the first thing they’ll do is to work against the filibuster-everything strategy their party has been using for five years and has used maximally on nominations over the last few months. Indeed, if they really cared about holds, the most important thing they could have done would have been to undermine the blockades against several executive branch positions and against D.C. Circuit Court positions that produced majority-imposed reform in the first place.

To contact the writer of this article: Jbernstein62@bloomberg.net.

To contact the editor responsible for this article: Max Berley at mberley@bloomberg.net.