Democratic Panic Watch: The Post-Filibuster, Still-Horrible Nominee Process

Reporting on Politics and Policy.
April 4 2014 5:56 PM

Democratic Panic Watch: The Post-Filibuster, Still-Horrible Nominee Process

So: Nearly half a year had passed since Democrats ended filibusters on nominees for executive branch jobs or federal court seats. They initially got through a bunch of blocked nominees, but they stalled out with picks for the Civil Rights Division of DOJ and surgeon general who were controversialized in conservative media and bailed on by Democrats. The defeat of Debo Agelibe ranked, especially, as seven Democrats turned on him over his work representing Mumia Abu-Jamal. As Juliet Eilperin reported last week, a fear factor that had been stoked for years, and arguably peaked in 2011, was back: Potential nominees did not want to wreck their lives to sit in statis for years.

Why? The filibuster reform took away one of the tools Republicans used to stall nominees. It did not take away the toolbox. The party has kept on filing holds on nominees to extract concessions—or even just to freeze up regulations they oppose. It's not an accident that the Council on Environmental Quality lacks a head, or that the nominee to run the EPA's water office, Kenneth Kopicis, has been stuck for close to three years.

Spite plays a role, too. Earlier this year, Senate Republicans were habitually denying unanimous consent to allow votes on judicial nominees. The reason that Sen. Lamar Alexander gave Jennifer Bendery was "until I understand better how a United States senator is supposed to operate in a Senate without rules, I object."

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From 2009 to 2012, the Democratic base (the very small portion of it that pays close attention to an issue as obscure as this) put some blame on the White House. It simply wasn't prioritizing nominations; there was a night-day difference between the work George W. Bush did to shame the Senate over stalled nominees and the indifference Barack Obama showed in public. That changed when the White House chief of staff and counsel, in Obama's new term, focused on confirmations. Obama has now nominated 301 judges, of which all but 64 have been confirmed. Part of that success has meant the arrival of nominees who can make it out of the Republican gauntlet, because Republicans suggested them.

The left wants more, as Edward-Isaac Dovere explains nice and concisely.

The nomination of Michael Boggs has become a rallying point for liberal groups and Democratic officials. Boggs was part of a nomination package the White House negotiated with Georgia’s two Republican senators to get their blue slip approval, but his history as a state legislator backing issues such as abortion rights restrictions and the Confederate flag as part of the state flag has prompted pushback from NARAL, MoveOn and just about every liberal interest group, and people like civil rights leader Rep. John Lewis (D-Ga.) calling for a review of the process that produced him.

Basically, the left has eight more months to play with a Senate that's got enough progressives to confirm nominees. Best case scenario, in 2014: They lose at least two seats, making the small group of Democratic moderates more pivotal. Worst case: They lose the Senate, by a lot, and get absolutely none of the nominees they want.

"People are becoming controversial over things they shouldn't become controversial over," says Neera Tanden, president of the Center for American Progress. "Who you represented as a lawyer? Under that standard it's going to be hard to confirm a lot of people. There are unsavory people on both sides of the aisle. So it's important for progressives to make their case more affirmatively. I would agree with President Clinton that it's hard to fight when you're in a defensive crouch. It's easy to get hit. I'm not a Democrat running in a red state, but I'd say if you telegraph that you're scared about a nominee or about Obamacare, you're saying there's something to be scared about?"

David Weigel is a Slate political reporter.