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Bernstein: A phony debate on 60 votes

Published July 13, 2013 1:01 am

This is an archived article that was published on sltrib.com in 2013, and information in the article may be outdated. It is provided only for personal research purposes and may not be reprinted.

By Jonathan Bernstein

Special to The Washington Post.

Majority Leader Harry Reid, D-Nev., and Minority Leader Mitch McConnell, R-Ky., engaged in a long argument on the Senate floor Thursday morning over Republican obstruction and Democratic plans to do something about it.

In practical terms, this is a game of chicken. Republicans — the minority party — want to block as many presidential nominees as possible. Senate rules allow that. The only real weapon Democrats have is to threaten to change Senate rules so that simple majorities can confirm those nominations. This is a weapon Democrats are reluctant to use, and it remains unclear at what point they will decide there is too much obstruction and act. And so Republicans will keep pushing right up to where they think the line is, while Democrats threaten to go nuclear any minute.

That's okay, as far as it goes.

But on the merits, McConnell gave away the game twice during the debate. At one point he referred to a "60-vote hurdle" and later talked about how few nominees are "likely to have problems getting cloture."

That's the problem, right there. Since January 2009, McConnell has treated filibusters as routine and universal. That's brand-new. Executive-branch nominees had been filibustered before but only in rare cases. Almost all the time, under all previous presidents, executive-branch nominees didn't have to get cloture; they needed to get only a simple majority.

This is how it should be. There are reasonable justifications — agree with them or not — for supermajority requirements on at least some legislation and some lifetime-appointment judgeships. I'm not aware of any good arguments for needing 60 votes on any executive-branch nominations, let alone making that the standard for all of those selections. For years, everyone has believed that presidents should basically be entitled to the personnel they want and that the confirmation process was basically an opportunity for senators to have some leverage over what happens in the departments and agencies, after which nominees would normally be confirmed. This system worked reasonably well, and there's no reason it shouldn't be the system now, even if Democrats have to change the formal rules to restore how things used to work.

What's happening now is simply about how far Democrats are willing to go to accommodate what is absolutely unprecedented obstruction of executive branch nominations without invoking their right to impose a rules change.

On the merits, however, McConnell is dead wrong. He spoke Thursday about whether Reid would ruin the Senate by going nuclear, but the ones who are actually threatening ruin are Republicans who insist on a 60-vote Senate and, more generally, Republicans who constantly defy Senate norms to gain short-term advantage.