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Their Senate, Their Rules: GOP May Allow Blocking Of Nominees Again

Dec 8, 2014
Originally published on December 8, 2014 11:28 am

Incoming Senate Majority Leader Mitch McConnell says one of his top priorities will be to make the Senate work the way it used to — which would include the use of filibusters to block presidential appointments. But would that improve the way the Senate works? Republicans will be debating that question behind closed doors Tuesday. Many were furious when Democrats eliminated the filibuster for nearly all confirmation votes last year — a change some called the "nuclear option." But now that the GOP will be in the majority, they're not all that eager to go back.

The drama over which party has the dirtier hands when it comes to blocking nominations has gone on for years as the majority party has changed. When Democratic Sen. Harry Reid decided to get rid of the filibuster on confirmation votes last year, it wasn't all that surprising, given how bad things had become.

So, why should anyone care about this moment now? Republican Sen. Susan Collins of Maine says it matters because it's about restoring integrity to the Senate.

"The Senate has always been known for its protection of minority rights, and I think it was wrong for the Democrats to break the rules of the Senate in order to change the rules of the Senate," Collins said.

So she wants to return to the old rules — when it took 60 votes to confirm rather than a simple majority. Because the Senate is supposed to be different from the more populist House — it's meant to be more deliberative.

But many Republicans ask, why bother changing things again? There's less drama with majority rule. Even those who would rather restore the filibuster — like Sen. Jeff Flake of Arizona — understand that some people are tired of fighting.

"Because I think a lot of our colleagues realize we shouldn't politicize these nominees," Flake said.

Actually, there are very political reasons for Republicans not to resurrect the filibuster. Especially if a Republican gets elected president in 2016.

"If you get a Republican president, then he's not going to have nearly the troubles that we've always had with Democrats in getting judges through," said Senate Republican Orrin Hatch of Utah.

And Hatch says even if his party brought back the filibuster for tradition's sake, it could be short-lived.

"I used to be in this camp, who think we need to get back to the old rule. But the Democrats will break that rule anytime they want to, if they get back in the majority," Hatch said.

Besides, even without the filibuster, there are many ways Republicans can easily block nominations.

"The whole filibuster debate is a bit of a red herring. It's not unimportant, but it certainly doesn't explain anywhere close to all of the reasons that a president's confirmation rate is not going to be 100 percent," said Russ Wheeler of the Brookings Institution.

As the party in control, Republicans can refuse to schedule committee hearings for nominees. Or the new majority leader can simply refuse to hold floor votes.

But law professor Carl Tobias at the University of Richmond says Republicans may well restrain themselves.

"They are coming into power and want to show that they can actually do something. Sen. McConnell is talking about making the Senate functional again. I think they want to start off on a positive note," Tobias said.

If you look at the past three two-term presidents, each was able to get at least some of his nominations through in his last two years — all with a Senate controlled by the opposing party. So maybe McConnell will be satisfied with returning to those examples of Senate tradition.

Copyright 2018 NPR. To see more, visit http://www.npr.org/.

STEVE INSKEEP, HOST:

Senate Republicans who denounced how Democrats do business now have a choice; it's whether to do business that much differently.

DAVID GREENE, HOST:

Republicans meet privately this week as they prepare to take over the Senate. They'll debate whether to change back a filibuster rule made by Democrats.

INSKEEP: This story is all about the power of math. There will be 54 Republican senators in January - a majority, but less than the 60 votes needed to overcome a filibuster.

GREENE: Democrats ended that filibuster for judicial nominees, and that made Republicans very unhappy.

INSKEEP: But now that they will be running the show, not all Republicans are sure they want to put the old filibuster rule back in place. Many want to see the Senate run smoothly. NPR's Ailsa Chang reports.

AILSA CHANG, BYLINE: OK, there are a lot of stories about Congress that make people outside the Beltway wonder, why should I care? And a story about the nuclear option might be one of them. In fact, even inside the Beltway, right next to the U.S. Capitol Building itself, you can find people like Grant Conger. He's a full-time dad. What does nuclear option have to do with Congress? Do you have any idea?

GRANT CONGER: No, I don't.

CHANG: If I were to tell you that the Senate Majority Leader Harry Reid invoked the nuclear option last November to change the filibuster rule so that a filibuster is no longer allowed for most presidential nominations, how much do you care?

CONGER: Honestly, this is going to sound bad - not that much.

CHANG: Why is that?

CONGER: I do care, but here's the problem is that it doesn't matter to me anymore. Like, I've seen all this before. I'm not interested in the same drama over and over again. It's going to be the same thing all the time.

CHANG: Conger has a point. The drama has gone on for years - whichever party has been in the majority. So when Reid decided to get rid of the filibuster on confirmation votes last year, it wasn't all that surprising, given how bad things had become. So why should anyone care about this moment now? Republican Susan Collins of Maine says it matters because it's about restoring integrity to the Senate.

SENATOR SUSAN COLLINS: The Senate has always been known for its protection of minority rights, and I think it was wrong for the Democrats to break the rules of the Senate in order to change the rules of the Senate.

CHANG: So Collins wants to return to the old rules - when it took 60 votes to confirm rather than a simple majority because the Senate is supposed to be different from the more populous House. It's meant to be more deliberative. But many Republicans say, why bother changing things again? There's less drama with majority rule. Even those who would rather restore the filibuster, like Jeff Flake of Arizona, understand some people are actually tired of fighting.

SENATOR JEFF FLAKE: Because I think a lot of our colleagues realize that we shouldn't politicize a lot of these nominees.

CHANG: Actually, there are very political reasons for Republicans not to resurrect the filibuster, especially if a Republican gets elected president in 2016. Here's Orrin Hatch of Utah.

SENATOR ORRIN HATCH: If you get a Republican president, then he's not going to have nearly the troubles that we've always had with Democrats in getting judges through.

CHANG: And Hatch says even if his party brought back the filibuster for tradition's sake, it could be short-lived.

HATCH: I used to be in this camp, who think we ought to get back to the old rule, but the Democrats will break that rule anytime they want to if they get back in the majority.

CHANG: Besides, even without the filibuster, there are many ways Republicans can easily block nominations

RUSS WHEELER: The whole filibuster debate, I think, is a bit of a red herring.

CHANG: Russ Wheeler is a scholar at the Brookings Institution.

WHEELER: It's not unimportant, but it certainly doesn't explain anywhere close to all of the reasons that presidents' confirmation rate is not going to be 100 percent.

CHANG: As the party in control, Republicans can refuse to schedule committee hearings for nominees, or the new majority leader can simply refuse to hold floor votes. But Carl Tobias at the University of Richmond says Republicans may well restrain themselves.

CARL TOBIAS: They are coming into power and want to show that they can actually do something. Senator McConnell's talked about making the Senate functional again. I think they want to start off on a positive note.

CHANG: If you look at the last three two-term presidents, each was able to get at least some of their nominations through in their last two years, all with the Senate controlled by the opposing party. So maybe McConnell will be satisfied with returning to those examples of Senate tradition. Ailsa Chang, NPR News, Washington. Transcript provided by NPR, Copyright NPR.