Senate Democrats, with President Obama’s strong support, boldly opted on Thursday to rewrite the rules of the U.S. Senate and make it much more difficult for Republicans to block Obama’s nominees to key posts, clearing the path for a key set of Obama appointees to be confirmed but also angering Republicans who are essentially guaranteeing retribution.
In a largely party-line vote, 52 Democratic Senators voted to change Senate rules so that nominees for executive branch posts and federal judgeships, except for those to the U.S. Supreme Court, can be confirmed with a majority vote of the Senate and cannot be stalled by filibuster tactics that require 60 votes to overcome.
In effect, the vast majority of nominees can be confirmed now with simply 51 votes, instead of the current practice, used by Democrats in the past and Republicans now, in which a minority of 41 senators can stall a nomination.
“What’s at stake here is not my ability to fulfill my constitutional duty; what’s at stake is the ability of any president to fulfill his or her constitutional duty,” President Obama said after the vote.
In the short term, this will greatly enhance the authority of the president. Executive branch nominees, such as U.S. Rep. Mel Watt of North Carolina, Obama’s pick to be the head of the Federal Housing Finance Agency, who have been blocked by Senate Republicans will now almost certainly be confirmed, since there are 55 Democrats in the Senate and only 50 (Vice-President Joe Biden is the tie-breaking vote) are now needed.
Perhaps more importantly, Obama’s nominations to federal courts can be approved more easily as well.
Obama had been pushing hard to get more Democratic judges on the highly-important D.C. Circuit, which generally handles cases that involve the president using his executive authority to enact regulations outside the purview of Congress. That court is likely to make decisions on the implementation of the Affordable Care Act and environmental regulations that the administration is considering, and the Obama White House wants to make sure as many of those judges as possible are Democrats.
Republicans had been blocking nominations to this court, even though it had vacancies, because it wanted to ensure the court was still controlled by judges appointed by Republican presidents.
In addition, the president can consider changes to his Cabinet if he wants them. With the 60-vote requirement, it was much easier for Republican senators to stall or block an Obama nominee, meaning that if someone on the Cabinet resigned, the slot could remain vacant for months or years. Now, Obama can consider replacing either people who have been in the Cabinet for years and may want to leave (perhaps Attorney General Eric Holder) or those who are very controversial and under fire (Health and Human Services Secretary Kathleen Sebelius).
But there is an obvious downside to this move. Republicans are angry about this rule change, even if their broad use of the filibuster and other stalling tactics invited it. The Senate had been less defined by constant conflict (as Obama himself noted, a bipartisan group in the Senate pushed the passage of an immigration bill over the summer) than the House, but that may change now.
More importantly, the 60-vote threshold is now gone, and that could cause Democrats problem when inevitably they are in the minority again in the Senate. A Republican president, along with 50 Senators and his or her vice-president, could now for example, appoint Newt Gingrich, Rick Perry or another controversial figure to a key Cabinet post, a move Democrats would have surely filibustered under the old rules. (To be sure, Republicans were likely to change the rules whenever they were in power again anyway, regardless of what step Democrats took.)
And while this current move only applies to non-Supreme Court nominations, the Democrats have effectively said the 60-vote threshold no longer makes sense.
If the Republicans regain control of the Senate, they are almost certain to start applying a 51-vote standard to everything else too. Then, a Republican president, joined by 50 GOP senators and a GOP vice-president, could, for example, appoint Clarence Thomas or Antonin Scalia as the next chief justice of the Supreme Court. A Republican president, a GOP-controlled House and 51 senators could repeal, for example, the Voting Rights Act. (Under the previous Senate rules, only 51 votes were required for most fiscal matters, so Republicans could have already used the 51-vote standard to repeal the health care law.)
This change is a huge boon to Obama now, potentially allowing him to reshape the federal judiciary in a way that Senate Republicans weren’t allowing. But it doesn’t change the fact that gun control, immigration and many of his other biggest priorities are dead on arrival in the House even if they don’t pass the House. And this change could be a very temporary boost for Democrats, as Republicans could gain control of the Senate in next year’s elections.