Going down?

Photographer: Andrew Harrer/Bloomberg

Ted Cruz's Blunder Doesn't Compare to His Party's

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.
Read More.
a | A

The Senate confirmed a lot of judicial and executive-branch nominations before adjourning yesterday, and Senator Ted Cruz is getting lots of the credit because of his backfiring maneuver to keep the chamber in session last weekend.

That’s fair to some extent. The fascinating end game of the lame-duck session of the Senate was about how long Democrats would be willing to stick around and get their business done. And it mattered how quickly Democrats could work their way through each nomination. Accelerating the process meant more nominations completed in a shorter time, making it more likely Democrats would be willing to stay in session as long as it took. It also meant that they could successfully bluff, even if many senators were telling Harry Reid they were itching to leave.

And yet, Republican senators who reacted by attacking Cruz need to look in the mirror. Because whatever mistakes Tail Gunner Ted made at the end of the session are  nothing compared with the overreach displayed by the Republican conference as a whole when it forced Democrats to go nuclear and kill the filibuster by implementing majority-imposed rules reform last October.

Yes, Republicans forced Reid’s hand. This is the sequence of events:

Republicans in the 111th Congress (2009-2010) implemented unprecedented across-the-board filibusters on everything, forcing Democrats to have 60 votes to confirm every judge, every executive branch nominee and every bill. That raised the threshold for confirmation to 60 votes, even for nominees Republicans didn't object to.

Democrats did nothing.

Republicans in the 112th Congress continued the across-the-board filibuster, and added the invention of “nullification” filibusters in which they refused to confirm anyone for some positions.

Democrats did nothing during the 112th.

Democrats did, however, push for reform at the beginning of the just-ended 113th Congress, but instead of imposing majority rule, they settled for a deal that made minor changes to the time a defeated filibuster could take. Republicans then continued their nullification filibusters, leading to a confrontation in summer 2013 in which Democrats threatened majority-imposed reform, and Republicans backed down and ended one set of nullification filibusters.

Democrats finally acted when Republicans renewed nullification filibusters in October 2013 and refused to back down. The change ended supermajority confirmation for executive branch and judicial nominations.

It’s almost certain that if Republicans had limited themselves to defeating the specific nominees they opposed (while delaying the rest), Democrats would have gone along. We know this because Democrats did go along with that and more during President Barack Obama’s first term, including the brokered deal in summer 2013. Recall, by the way, that Republicans threatened to invoke the so-called nuclear option during the Bush administration because Democrats had defeated a handful of judicial nominations by filibuster -- no nullification, no across-the-board delays.

It’s hard to say how many confirmations can be attributed to the change. Other variables mattered, including an apparent shift by the White House toward making nominations a higher priority, and the fact that the Senate didn’t have very much legislating to do. But at the very least, going nuclear meant that Democrats could confirm some controversial nominees, including the new surgeon general, Vivek Murthy.

And in the end game, majority confirmations meant that Republicans lost a major weapon: They couldn’t shut nominations down by exercising a winning filibuster against all remaining confirmations. That destroyed their bargaining position, which left the Democrats being able to do whatever they wanted.

Yes, Cruz indulged in a symbolic tantrum at the cost of real substantive losses. And it's also true that every Republican senator was guilty of the same offense just last year. With much more significant consequences.

  1. Republicans are correct that those Democratic filibusters of judicial nominations were a significant ratcheting up. The Republican threat to go nuclear in response wasn't unreasonable. The deal that was reached, in which the minority party would only attempt to defeat by filibuster a handful of choices they most strongly objected to, was probably a good reflection of the actual leverage each side had. 

This column does not necessarily reflect the opinion of Bloomberg View's editorial board or Bloomberg LP, its owners and investors.

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