Will Senate Majority Leader Harry Reid honor Senator Rand Paul's hold on an appellate court nomination? Photographer: Andrew Harrer/Bloomberg
Will Senate Majority Leader Harry Reid honor Senator Rand Paul's hold on an appellate court nomination? Photographer: Andrew Harrer/Bloomberg

As I argued, Republicans blundered last fall by forcing1 Democrats to go nuclear by eliminating supermajority confirmation of nominations. They’ve also blundered with a pointless retaliation strategy, which has further eroded any influence they might have over nominations.

That’s because Republicans have chosen to drag their feet on nominations. Unfortunately, the explanation is a bit technical: Republicans have insisted on cloture votes for all judicial nominations, even though the same simple majority vote is now needed to end debate and for final confirmation. In addition, they’ve insisted on the full available amount of post-cloture time, breaking with the custom of yielding more or all their time. That means each nominee has a pointless cloture vote, and appeals court judges have a 30-hour delay between the cloture vote and final confirmation. Note that Republicans haven’t been using that post-cloture time to debate the nominations; they’ve just forced maximum use of time.

All of this is within Senate rules. And it’s possible the delays could cost Democrats some low-priority nominees. As I said last week, however, that strategy of maximum delay on every nominee means that Republicans don't express any priorities, so Democrats don’t have to take their views into consideration when scheduling confirmation votes.

Furthermore, the combination of going nuclear with maximum delay in the post-nuclear era deprives holds on nominations of most of their power.

A hold is essentially a request from a senator to pause a nomination. It’s backed up by a threat of a filibuster. For more than a half-century. majority leaders have tended to respect those holds, even when they know that the senator placing the hold doesn’t have enough votes to sustain a filibuster. That may be because minority-party senators (or even some in the majority) might support the lawmaker placing a hold in a cloture vote even if they didn’t actually object to a nominee. But this probably has more to do with the desire of all senators to magnify their individual importance. Nonetheless, the fact that one senator can cause quite a bit of trouble is a big reason holds are respected.

At least, that used to be the case. These days, with majority confirmation and Republicans' willingness to use just about every means they have to delay every single nomination, there’s really nothing more any senator can threaten.

This comes up today because Senator Rand Paul has announced a hold on the nomination to the appellate court of of former Justice Department lawyer David Barron as a way to press Justice to release drone-war memos. That’s how holds should work: A senator with a special interest in a topic uses a nomination for leverage against the executive branch.

Except what does a “hold” mean when it’s not backed up by any possibility of effective action? The Hill’s Alexander Bolton says Paul “can drag out consideration of the nomination for several days.” But as @Mansfield2016 pointed out on Twitter that’s only compared to no delay, and Paul doesn’t have any way of forcing a delay beyond what Senate Minority Leader Mitch McConnell and the Republicans are already doing.
It’s possible that Harry Reid will honor the hold anyway, especially if some Democrats urge him to. But it’s a good illustration of how the Republican “maximum resistance” strategy mainly hurts themselves.

1 “Forcing” isn't too strong.When Democrats ratcheted up their obstruction of several of George W. Bush’s judicial nominees, Republicans threatened to go nuclear. Democrats backed down. Republicans again ratcheted up the filibuster wars at the start of Barack Obama’s presidency, and then again, despite “nuclear” threats, by blockading various offices -- that is, refusing to allow anyone to be confirmed. Republicans backed down on executive branch nominations last summer, but then refused to back down on judicial nominations. At that point, Democrats were forced to choose between majority tyranny on nominations or minority tyranny, and they made the obvious decision – Republicans having removed the option of loose majority-party rule with strong minority party rights.

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.