A busy and interesting week in the world’s most filibustering chamber:
• The update on nuclear retaliation is that Republican foot-dragging continues, but there may be hints of a thaw. Four judges were confirmed Wednesday and seven executive-branch nominations were approved Thursday. Of those eleven nominations, five received both cloture and final recorded votes ; the other six were confirmed by voice votes. The big holdup is still the Republicans' refusal to allow a bulk unanimous consent approval of a bunch of executive-branch nominations, and they are still forcing both cloture and final votes on uncontroversial judges. Nonetheless, things are a little better, though the list of (mostly uncontroversial) nominations on the executive calendar remains ridiculously long. Majority Leader Harry Reid now has to keep his foot on the accelerator. My guess is that Republicans will give up much of their foot-dragging if the cost is a shorter recess.
Quick note: yes, Republicans are slow-walking nominations. We don't know how many would have been processed without the nuclear option. And, in a pinch, Democrats probably would accept the trade of getting circuit-court nominees confirmed at the price of not getting to all the district court picks.
• The nomination of Debo Adegbile to be assistant attorney general for civil rights was defeated on a cloture vote. Putting aside all the arguments about the nominee, it was noteworthy that defecting Democrats chose to treat the cloture vote as if it was the final vote on the nomination. It’s a good reminder that at this point, few in either party really view participating in a filibuster as a higher hurdle than regular, plain-vanilla opposition. That probably was part of the decision to go nuclear. With a 60-vote cloture threshold, majority-party senators could be able, in theory, to vote for cloture and then oppose the nomination in the final confirmation vote. In the modern campaign environment, however, such a maneuver would be a ripe target for attack ads.
As I said earlier, given that the majority voted against Adegbile, it’s more accurate to say his nomination was flat-out defeated, rather than killed by filibuster, even though the crucial vote was on cloture.
• Senator Kirsten Gillibrand's bill on sexual assault in the military was defeated by filibuster, also with several Democrats voting against cloture. What this shows, however, is how the majority can use cloture procedures to resolve problems within the majority. In this case, the Senate was faced with majorities for both Gillibrand's measure and for Senator Claire McCaskill's alternative. After Gillibrand recorded a 55-45 majority (five votes shy of cloture), McCaskill unanimously achieved cloture. Filibuster/cloture and Senate rules that are open to amendment allowed Gillibrand to force a kind of vote on her alternative despite the opposition of the relevant committee. Another observation is that Reed probably could have structured some sort of vote battle between the two alternatives without filibuster/cloture. But that would have been difficult without unanimous consent. The third point is that this is a good demonstration that what the “majority” is entitled to is tempered by the strong possibility that multiple majorities exist on many issues. In other words, empowering “majority rule” often means empowering one set of actors, or possibly just one well-positioned actor, to choose among those multiple majorities.
If there's one point tying all of this together, it's just that this just a matter of being for or against the filibuster. As with most things related to rules and democracy, the more you look at it, the more complicated it gets.
To contact the writer of this article: Jbernstein62@bloomberg.net.
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