President Barack Obama could rush to get Secretary of Labor Thomas Perez confirmed as attorney general.

Will Republicans Bring Back the Filibuster?

Jonathan Bernstein is a Bloomberg View columnist. He taught political science at the University of Texas at San Antonio and DePauw University and wrote A Plain Blog About Politics.
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Eric Holder has announced his resignation and President Barack Obama needs a new attorney general. As Byron York notes, one option would be to nominate Secretary of Labor Thomas Perez and push for confirmation during the lame-duck session of Congress. Perez would probably be defeated by a party-line vote after the next Senate is seated in January, at least if Republicans win a majority. York is probably correct; Perez was confirmed for labor on a party-line vote.

York argues that Perez would be a very different kind of lame-duck confirmation than Secretary of Defense Robert Gates in 2006. That's true; President George W. Bush wasn't trying to push through a controversial nominee before control of Congress flipped, as Obama would be doing if he urged a rapid confirmation of Perez. On the other hand, it's not common for lame-duck Senate sessions to coincide with top cabinet vacancies. And there are even fewer occasions for a lame-duck session when the Senate is flipping away from a president's party, which has only happened in 2006, 1994 and 1986, 1946, and 1918 over the last century. In other words, there are few norms for how a president should behave because these circumstances (lame-duck session, president's party loses control, high-level vacancy) so rarely occur.

Perez, as York says, might be defeated by a party-line vote even if there are just 51 Republicans. But Brian Beutler argues that Republicans may choose to make it even easier to defeat Democratic executive branch and judicial nominees by restoring a 60-vote threshold to overcome confirmation filibusters. As Beutler points out, Republicans might spin such a move as a reversal of the "power grab" by Democrats who changed the rules to allow confirmations to proceed by simple majority vote. In fact, by restoring the 60-vote rule Republicans would be making it harder for Obama to put judges on the federal bench and keep the federal bureaucracy working.

The prospect of majority-imposed reform is the reason that Democrats during the Obama administration (and Republicans during the Bush administration) resisted "going nuclear" and changing Senate rules by simple majority. After one party has done it, the barrier drops for the next majority to arbitrarily adjust the rules in its favor. And yet that's also why minority parties always showed some restraint in using the filibuster until Senate Minority Leader Mitch McConnell and his fellow Republicans decided on a maximum-obstruction strategy against Obama. The old filibuster rules couldn't work if the minority party didn't abide by the Senate norm of filibustering selectively.

Since we're talking about controversial attorney general nominations, it's worth remembering that Democrats who opposed John Ashcroft's nomination in 2001 didn't mount a filibuster against him, and Ashcroft was confirmed with only 58 votes. Once that stopped being possible because Republicans decided to filibuster everything (that is, to require 60 votes every time), majority-imposed reform became inevitable.

I still would like to see some compromise that would restore some protections for the minority on judicial nominations. On executive branch nominations, however, a simple majority should be sufficient, and it would be too bad if Republicans rolled back that change.

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To contact the author on this story:
Jonathan Bernstein at jbernstein62@bloomberg.net

To contact the editor on this story:
Max Berley at mberley@bloomberg.net