In a more boring and predictable world, Chuck Hagel would be one step closer to the Pentagon today. After last week’s debacle in front of the Armed Services Committee, Hagel was given a week to provide the texts of speeches he’d given since leaving the Senate and proof of any “financial remuneration” he’d taken from foreign interests. On Wednesday morning, 24-odd hours before the committee would vote to recommend the nomination, Hagel shrugged—the speeches were off-the-cuff, the financial info didn’t belong to him.
And so perpetually exasperated committee chairman Carl Levin pushed off the vote. He really didn’t want to. “We can't not vote,” he groused, “because there is dissatisfaction on the part of people because that could be endless.”
Pity the chairman. Just last month, he helped the Senate avert a blood-and-guts showdown over filibuster reform. Instead of taking away the 60-vote threshold to confirm a nominee, Levin helped shrink the debate time on a Cabinet nominee from 30 hours to eight. “It will make it easier to confirm nominees in general,” he told me. Since then, a gaggle of Republicans has threatened to filibuster Hagel and 42 Republicans have sworn to filibuster Consumer Finance Protection Board Director Richard Cordray.
Why are Democrats perpetually shocked—shocked!—when Republicans throw hurdles in front of their nominees? For four full years, GOP senators have picked fights over appointments, delaying nominations when possible, occasionally throttling them outright.
They did not invent the practice. The filibuster and the nominee hold are beloved senatorial powers, tweaked and improved every year. Who would want to trade this system for some sort of Mohammed Morsi-esque executive appointment-by-fiat? Nobody, that’s who.
The problem for this White House is that the senatorial privilege to block nominees is, currently, the GOP’s best policy-making tool. Throughout the president’s first term, Republicans held nominees to force the administration to the table on pet issues. This rarely worked. Typically, the nominees just up and quit.
Louisiana Sen. David Vitter perfected the game. In early 2009, Vitter put a hold on Obama’s FEMA nominee until he got a “written commitment” that the agency would settle a few lagging infrastructure issues in his state. That was typical senatorial kiss-the-ring-ism. Then, in 2010, in the wake of the Deepwater Horizon oil gusher, the administration put a moratorium on some offshore drilling. Vitter blocked Obama’s nominee to head the National Oceanic and Atmospheric Administration because the administration didn’t make the “climate czar” available to defend the science of the moratorium. The nominee surrendered.
The battle continued on varied fronts. In May 2011, the president nominated Edison International President John Bryson to run the Department of Commerce. Oklahoma Sen. James Inhofe accused Bryson of economic radicalism for his role in co-founding the Natural Resources Defense Council: “If Bryson becomes secretary of commerce, economic growth in Oklahoma and across the nation could be in jeopardy.” There wouldn’t be a vote on Bryson until five months after the nomination. First Sen. Richard Shelby, then Sen. Vitter—again—put holds on the president’s nominees to the Federal Reserve. They didn’t even pretend to have a procedural objection. They just didn’t agree with the guys. “I refuse to provide Chairman Bernanke with two more rubber stamps who approve of the Fed's activist policies,” explained Vitter, getting his way.
All of this happened after the top level administration was pretty much staffed. Most of Obama’s first-term Cabinet was confirmed when the Senate consisted of 58 Democrats and 41 Republicans. (One of those Republicans, Arlen Specter, switched parties; a 60th Democrat arrived when Sen. Al Franken won his recount.)
The Republicans have four additional votes now, along with a long list of grievances. The president’s going to put forward new nominees at Labor, Commerce, Interior, and Energy, all the subject of controversies and Drudge sirens in the first term. He’s going to keep nominating lower-level bureaucrats who, at this point, we just assume will get stuck.
What do Republicans want in exchange for the big-ticket nominees? I asked Vitter’s office what might need to happen before he lets an Energy or Interior nominee go through. “This administration's five-year offshore leasing plan is half what the nation's previous plan was,” said the senator in a statement. “So my top question for the new interior nominee is simple: Does she think that's the right direction for us to move in?”
Other senators were less forthcoming, either ignoring the question or mentioning short-term disputes—an EPA ruling here or there—that can probably be cleared away. That makes sense: Why say anything before the Obama administration reveals which piñata it’s going to gift them? When I asked one senator whether a filibuster was likely against the Hagel nomination, I was quickly told that a Cabinet-level nominee filibuster “wouldn’t be unprecedented” like the media keep on saying.
Meanwhile, the White House affects a no-panic stance on this stuff. It portrays the anti-Hagel backlash as doomed. “This will be forever remembered as the press trying to make a thing when there is none,” said one aide Thursday. For every Ted Cruz, leading a strike force to take down a nominee, there’s a Republican or 10 who’s willing to let it slide. The White House has to copy Levin’s approach—be calm, grimace, move on. Try to prevent policy-making-by-filibuster from becoming the standard. There will be allies, and unexpected ones.
“If it were [based only] on policy reasons, I would never vote for any of President Obama’s nominees,” says Kentucky Sen. Rand Paul. “I’m not sure the Constitution tells you exactly: What is advise and consent? Are you only supposed to rule out and vote against people who you think are criminal or have unpatriotic backgrounds? Are you supposed to rule out people you disagree with politically? In the past there’s been some latitude for presidents ... and if I do end up voting for some of these nominees, I don’t think anybody in my state or in the conservative community will think I’m going soft on the president.”