Democrats are trying to limit filibusters of executive branch nominees but specifically have said they aren’t targeting, at least for now, filibusters of judicial nominees — the exact opposite of what Republicans contemplated in 2005.
The move raises questions about the difference between the two types of nominees, and whether there’s a reason to allow filibusters for one but not the other.
“We’re not touching judges,” Senate Majority Leader Harry Reid said on NBC’s “Meet the Press” on Sunday. “That’s what they were talking about. This is not judges. This is not legislation.”
The executive branch nominees carry out the president’s agenda, while judges are part of a separate branch of government which, in theory, is supposed to be above politics.
But Democrats tested that equation eight years ago when they launched partisan filibusters of a handful of President George W. Bush’s nominees to circuit and district courts, and left the GOP threatening to use the “nuclear option” of forcing a rules change by a majority vote, rather than the two-thirds the Senate usually requires.
This time, it’s Democrats who are threatening to go nuclear, though only over the executive and independent agency nominees, not judges.
Carl Tobias, a professor at the University of Richmond School of Law, said Democrats are targeting executive nominees now because that’s where the GOP is doing the most obstruction, while Republicans targeted judges in 2005 because that was where the problem was then.
But he said the GOP tried to justify a difference, even though under the Constitution there is none — all nominees are subject to the same “advice and consent” powers the founding document gives the Senate.
“Most GOP senators, however, tried to justify the option on an illogical constitutional argument that filibusters were unconstitutional as to judges only even though the same constitutional language governed Senate confirmation of all presidential appointees.”
Republicans say the focus on executive branch officials is strange because Mr. Obama has — eventually — won every one of those appointments he has pressed for a final vote.
Indeed, the only Obama nominees who have been successfully blocked by filibuster have been judges, suggesting that that is still as much of a problem as executive branch jobs.
Hans A. von Spakovsky, senior legal fellow at the Heritage Foundation, said the fight this time is all about appeasing Democrats’ liberal base, which believes that there is a lot of power to be wielded by executive agencies.
They particularly want to see National Labor Relations Board nominees confirmed in order to keep the board up and running past the end of this year.
“They really are being pushed to do this by their big supporters,” said Mr. von Spakovsky, who was a Bush nominee to the Federal Election Commission and saw his appointment languish for two years, held up by then-Sen. Barack Obama and Mr. Reid.
Filibusters of nominees don’t appear to have extended deep into the nation’s history, but that’s chiefly because presidents used to consult with senators far more extensively on their nominees ahead of time.
It wasn’t until the modern bureaucracy was formed after World War II that the Senate even began holding votes to end filibusters, according to the Congressional Research Service.
In 2005, when the GOP contemplated using the nuclear option, they argued that judges were too important to allow partisan politics to play a role in picking and choosing who staffs the federal bench.
Now, Mr. Reid argues that it’s the nature of the separation of powers that the president should be able to get his own team in the White House, which is why there shouldn’t be filibusters of executive branch slots.
The 2005 controversy was headed off after the “Gang of 14” senators, seven from each party, struck a deal that preserved the right to filibuster judges, but said it should happen only in the rarest of circumstances.
Current Senate Minority Leader Mitch McConnell, who was the No. 2 Republican in the chamber in 2005 and supported the GOP’s move then, now says he’s happy he didn’t follow through.
“We went to the brink, and we pulled back because cooler heads prevailed, and we knew it would be a mistake for the long-term future of the Senate and the country,” he told NBC.
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