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October 4, 2015

Reid a Reluctant ‘Nuclear’ Warrior

Will another Senate “gang” emerge to keep Majority Leader Harry Reid from the nuclear option to preclude filibusters of nominees? Maybe that’s what he’s hoping for.

Read one statement from the Nevada Democrat and you would think he’s on the verge of making real changes to the Senate’s rules. Read another and you wouldn’t be so sure.

“I’ve sent a warning across the bow of the Republicans. … I said that we were going to see if we’re able to change how things are going around here, but we’ll see,” Reid told the Reno Gazette-Journal editorial board Tuesday. “I’m not threatening anyone, I’m just saying that I believe whether it’s Jeb Bush or Hillary Clinton, the next president, they should be able to have who they want working for them.”

Back on April 5, Reid opened the door on Nevada Public Radio, saying that if President Barack Obama’s nominations didn’t move more swiftly, he would take more action.

“All within the sound of my voice, including my Democratic senators and the Republican senators who I serve with, should understand that we as a body have the power on any given day to change the rules with a simple majority, and I will do that if necessary,” Reid said.

Since then, the majority leader has insisted that he has not committed to making changes, while contending that the onus is on Republicans to allow more executive branch and judicial nominees to move through without obstruction.

Democrats say their GOP counterparts are delaying things for the sake of delaying them.

Republicans point to statistics comparing confirmations during Obama’s second term to those during the same part of George W. Bush’s White House tenure, with Minority Leader Mitch McConnell, R-Ky., saying before the recess that Obama has gotten about four times as many judges confirmed as Bush did.

“Their view is that you had better confirm the people we want, when we want them, or we’ll break the rules of the Senate to change the rules so you can’t stop us. So much for respecting the rights of the minority. So much for a meaningful application of Advice and Consent,” McConnell said on May 22. “Senate Republicans will work with the Administration and the Democrat Majority. But we will not be intimidated.”

Republican aides say the Democrats are moving the ball in terms of which nominations will lead to the final standoff. The current marker appears to be the nominations to fill three vacant seats on the D.C. Circuit Court of Appeals that Republicans don’t think should be filled at all.

Of course, the Democratic opposition to a number of Bush judicial nominees caused then-Majority Leader Bill Frist, R-Tenn., to traverse the same path that Reid is now on, and it wasn’t increased cooperation from the Democrats that averted the crisis. It was a “gang.”

The “gang of 14” senators consisted of seven Republicans and seven Democrats. They pledged to only support filibusters of nominations under “extraordinary circumstances,” but there was never a hard and fast rule for what that meant. Only five senators from that group still serve in the chamber; three of them are Republicans: Susan Collins of Maine, Lindsey Graham of South Carolina and John McCain of Arizona.

Those three have become something of a bellwether for judicial nominations, but it is an open question if such a group could materialize to block the effort, or if Democrats actually have the votes to plow ahead.

A Democratic leadership aide said there seems to be a fair amount of skepticism about another “gang” that could work out an arrangement that would create an acceptable result. The aide added that the deal from January has failed to achieve what Reid envisioned.
Other Democratic aides have echoed that sentiment in recent days. One cited the “gang of 14″ and the agreements at the start of the current and previous Congresses as unacceptable outcomes.

It’s those previous agreements, however, that cast doubt on Reid’s willingness to follow through on his current threats to forbid the minority to erect blockades on nominations. Then, as now, Reid talked tough leading up to the start of both the 112th and the 113th Congresses. But he stopped far short of imposing radical changes to filibuster rules in both instances.

In 2011, he settled for a “gentlemen’s agreement” with McConnell that he later complained had not been honored. (McConnell said the same at the time.)

Then in January of this year, Reid inked a deal with Republicans that preserved their ability to force 60-vote thresholds. The modest filibuster rule changes the Senate adopted merely gave Reid options for expediting the time between some supermajority votes, but the majority leader has yet to employ any of those new alternative routes.

However, some Republicans clearly seem rattled by Reid’s most recent threats. McCain has taken the unusual step of siding with Democrats in their bid to send the budget resolution to conference. He has argued in part that the Republicans who have been preventing the Senate from proceeding to a customary bicameral negotiating session are only emboldening Democrats who want to change the rules.

Similarly, Sen. Rob Portman, R-Ohio, is trying to find a way forward for Richard Cordray to be confirmed as head of the Consumer Financial Protection Bureau, a post he currently holds thanks to a disputed recess appointment. Reid had previously indicated that Cordray would serve as a test vote before he moved forward with any nuclear option.

There’s also a possibility that some Democratic senators may follow a theory that the rules could only be changed through a simple majority vote at the start of a new Congress, before newly elected senators have had a chance to agree to them.

One Senate Democratic aide noted that even if senators work behind closed doors and a group shows up to halt any movement in July, the exercise is all but sure to be repeated in January 2015 (assuming Democrats maintain control of the Senate).

Two Democrats who have expressed opposition to using the “nuclear option” might not be around for that fight. Sen. Carl Levin of Michigan is retiring, while Sen. Mark Pryor of Arkansas is among the most vulnerable Democrats of the 2014 cycle.

It remains to be seen whether Reid will even attempt to make the change this year. But he waxed poetic in his conversation with the Reno paper about the Senate as an institution and the late “Dean of the Senate” Robert. C. Byrd, D-W.Va.

“I really do understand the institution that Sen. Byrd left, probably — whether right or wrong — I probably know more about the rules than anybody there now. I’ve been doing this, you know, handling the floor since 1998, so that’s a long time,” he said.

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