If his party is united, his nominees will get through. Photographer: Brendan Smialowski/AFP/Getty Images
If his party is united, his nominees will get through. Photographer: Brendan Smialowski/AFP/Getty Images

The tangled nominations of President Barack Obama’s picks for assistant U.S. attorney general for civil rights and surgeon general led Sahil Kapur to suggest that the nuclear option was only “a modest change” in the way the Senate does business.

Not so fast.

Recent nominees to the U.S. Court of Appeals for the District of Columbia wouldn't have been confirmed if Senate Majority Leader Harry Reid and the Democrats hadn't imposed the new rules that make it harder for the minority to block executive-branch appointments. Thanks to the nuclear option, Democrats are now able to ensure the confirmation of any high-priority nomination they agree on. That’s a big deal.

The Filibuster

Under current conditions, reverting to simple majority confirmation decreases the pressure on marginal senators from the minority party to take a stand and increases pressure on marginal senators from the majority to do so, as Dave Weigel correctly concludes. In the pre-nuclear age, a nominee targeted by a united minority party had no chance; that put the pressure squarely on Republican senators such as Susan Collins, John McCain, Lamar Alexander and other real or relative “moderates” to either block a nomination or break with their party.1

That is why the minority party should be happy to make a deal that retains simple-majority confirmation of executive-branch nominees but restores the supermajority requirement for judicial nominations. After all, Republicans don’t care who winds up as surgeon general because whoever eventually occupies the post will probably share many of Obama’s biases on public health. For Republicans, the main reason to engage in nomination fights is to have an opportunity to highlight unpopular Democratic positions. And, as a bonus, the simple-majority rule could force Democrats to cast a few tough votes they could avoid when the minority was able to block nominations.

For judicial nominations, however, the minority party has substantive reasons to want to constrain the president. I favor a compromise that would peg the number of votes required for cloture to the size of the president’s party in the Senate (no larger than 60 and no smaller than a simple majority). This would force the majority party to be unified or pick up minority support, which would still give it the ability to defeat filibusters.
A lot of nominations will still be defeated in the post-nuclear era, but it's a different ballgame.

1 Important caveat: “Current conditions” is important to that conclusion, which depends on the balance of power in the Senate, and the levels of partisanship and ideological polarization.

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

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