With attorney general nominee Loretta Lynch expected soon to be confirmed by a very narrow Senate majority, Republicans who oppose her confirmation are wondering whatever happened to GOP hopes of reinstating the 60-vote threshold for judicial and executive branch nominees.
“I’m very unhappy, but there are not the votes to bring it back,” Sen John McCain, R-Ariz., told the Washington Examiner.
Senate Republicans in November 2013 condemned a move by then-Majority Leader Harry Reid to alter the rules of the Senate so that judicial branch and executive branch nominations would require only 51 votes for passage, rather than the typical 60 votes, effectively killing the GOP’s power to filibuster.
Reid used a parliamentary procedure, popularly labeled the “nuclear option,” allowing Democrats to change the voting threshold with just 51 votes and not a supermajority of 67 votes typically required to alter the rules of the Senate.
Democrats justified the change by arguing that Republicans had been abusing the filibuster to obstruct many of Obama’s nominees.
Republicans condemned Reid’s move at the time, and when the GOP won the majority a year later, Republican senators held meetings about whether to reverse the change made by Democrats, so that presidential nominees would again require 60 votes to win confirmation.
But despite hours of internal debate, GOP senators never came to an agreement, splitting on whether to leave it in place or reverse it.
Now the issue has slipped to the sidelines of an increasingly crowded Senate agenda.
“I think we got talked out on the issue,” Environmental and Public Works Committee Chairman James Inhofe, R-Okla., who is busy authoring a multi-year highway funding plan, told the Examiner. “Maybe other priorities are out there now. Like the highway bill.”
Earlier this year, McConnell announced he would not use the 51-vote “nuclear option” procedure to reverse the rule, but rather would use “regular order,” which would require a 67-senator supermajority to revert back to the 60-vote threshold.
But with his GOP conference split on the matter, it would not have passed even if McConnell had invoked the nuclear option.
“I wanted to do it with 51 votes, but there are not 51 votes to do it,” McCain told the Examiner. “Which is a big mistake, because we will not be in the majority forever.”
Some senators are happy to leave the rule in place and have even suggested expanding the 51-vote threshold to regular legislation, expressing frustration in recent measures blocked by Democratic filibusters, including a human trafficking bill that was stalled for weeks.
“If they keep obstructing everything we bring up that is rational, then I think we ought to consider going to 51 votes on legislation,” Sen. Richard Shelby, R-Ala., said.
Other senators argued that it made no sense to change back to a 60-vote threshold for confirming presidential nominees.
“I honestly think we would put the rule back in place and we would live with it and once Democrats got back into the majority they would just flip it again,” a GOP senator who asked for anonymity told the Examiner.
Lynch is expected to be confirmed by at least 51 votes. She’ll likely get several more votes than a majority, but could receive fewer than 60 votes.
Republicans control 54 votes and Democrats control 46. Absent the change made by Reid, Lynch would have needed 14 GOP votes to be confirmed. About five Republican senators are backing her so far.
It’s possible that more Republicans would have switched their vote to “yes” to help push Lynch across the finish line if 60 votes were required. After all, she will replace current Attorney General Eric Holder, whom Republicans despise and who was held in contempt of Congress by the House of Representatives after they accused him of withholding information about a botched federal gunrunning program.
But many Republicans were angered by Lynch’s endorsement of President Obama’s executive actions on immigration, specifically his plan to provide work permits and federal benefits for millions of illegal immigrants.
They have slow-walked the confirmation of Lynch, who was nominated five months ago, and some conservatives have threatened to try to reinstate the 60-vote rule when her nomination finally makes it to the floor for a vote.
Most Republicans, however, appear content with leaving the 51-vote threshold alone.
Sens. Mike Lee, R-Utah, and Lamar Alexander, R-Tenn., have introduced legislation that would expand the rule to all presidential nominees — including those tapped to serve on the Supreme Court, which is currently exempted from the rule.
“Generally, the Republican concern about what happened [in 2013] was the way it was done, rather than what was done,” Senate Rules Committee Chairman Roy Blunt, R-Mo., said.
Several senators told the Examiner they expect the rule will remain unchanged for the duration of the 114th session.
“I would never have changed it,” Shelby said. “But it’s hard to change it back.”
