- The Washington Times - Monday, July 15, 2013

Last-minute negotiations failed to break through the Senate’s impasse on nominees, leaving Democrats prepared to ignite the “nuclear option” Tuesday and use a shortcut to change the chamber’s filibuster rules, allowing them to push easily through President Obama’s appointments.

After huddling for more than three hours in a rare all-senators meeting, lawmakers emerged to say they had aired out their grievances in a positive manner, but hadn’t figured out a way to head off the momentous votes scheduled for Tuesday morning.

“It was a very good meeting, but at this point we’re headed toward votes,” said Sen. Tom Udall, a New Mexico Democrat who has pushed to curtail filibusters.

Several senators said they still hoped for a last-minute deal, but said no minds were changed in the closed-door meeting.

Earlier in the day, Majority Leader Harry Reid, Nevada Democrat, said the ball was entirely in Republicans’ hands — they can agree to all seven nominees he has scheduled for showdown votes Tuesday or else he will pull the trigger on the rules change.

“If the sky is falling, and they think it’s falling, let them stop the filibusters on the seven that I filed cloture on, and we will have up-or-down votes on these people and go on to the business for the day. That seems pretty simple to me,” Mr. Reid said at a speech at the Center for American Progress.

“Cloture” is a Senate term signaling a vote to end a filibuster, and Mr. Reid said he has been forced to hold cloture votes more than any other leader in history — or about twice the rate that Democrats forced Republicans to do from 2003 through the end of 2006.

Asked whether there was “wiggle room” where Republicans could confirm some but not all seven of the nominees, Mr. Reid said flatly, “No.”

Mr. Reid said his changes are limited in scope — they would apply only to executive branch nominees, not to lifetime-appointed judges or to legislation.

Republicans, though, said once the seal has been broken, it’s not a big leap to apply the rules to judges or to legislation.

“It is a big deal. It has the potential to change this institution in ways that are both hazardous and unforeseen,” said Sen. Jeff Flake, a freshman Republican from Arizona.

Indeed, the White House warned Monday that it already sees problems with getting its judges confirmed.

“We have big problems on the judicial branch nomination process, too,” White House press secretary Jay Carney said, “but this is just executive branch nominees.”

Mr. Reid, in his speech Monday, said he is not pondering a change to the judge filibuster situation.

“On judges, I’m comfortable with our doing what we’re doing,” he said. “We’ll see what happens, but I am very comfortable with where we are now, and I’m not trying to spread this to other places.”

Mr. Reid has set up seven filibuster votes for Tuesday: nominees for the Labor Department secretary, the Environmental Protection Agency administrator, three members of the National Labor Relations Board, the president of the Export-Import Bank, and the director of the Consumer Financial Protection Bureau.

Republicans have signaled that they would agree to the Labor, EPA, Export-Import and CFPB nominees and to one of the NLRB picks.

It’s the other two NLRB nominations that have sparked a battle that Republicans say could permanently alter the chamber.

Both of the NLRB nominees were people whom Mr. Obama named as recess appointees early last year. Senate Republicans contended that they were not in recess at the time.

A federal appeals court has agreed with the senators, and the Supreme Court last month said it would hear the case in its next term, beginning this fall.

The Constitution gives the president the power to nominate officials but charges the Senate with giving “advice and consent.”

Mr. Reid said the Constitution clearly lays out when it intends for a higher vote threshold, such as the two-thirds needed to ratify treaties, approve constitutional amendments or override presidential vetoes, and he said nominations aren’t part of that.

“In the same paragraph where the Founding Fathers talked about a supermajority, they mentioned presidential nominations — majority,” Mr. Reid said at the Center for American Progress Action Fund. “The Founding Fathers wanted an up-or-down vote, and that’s basically what we’ve been crying for now for years.”

The Senate does hold a technical up-or-down majority vote on every nominee. Before it can get to that point, senators have the option of filibustering, or using extended debate, to try to delay or block a final vote.

In the six months that the 113th Congress has been in session, Mr. Reid has held 19 cloture votes to cut off debate and has succeeded on 12 of those, for a success ratio of 63 percent. In the 112th Congress Mr. Reid held 73 cloture votes and won 41 of them, for a 56 percent success rate.

Both are far better than Democrats treated Republicans in the 2003-04 session, when they held 49 cloture votes and won 12 of them. Though a number of those votes were repeats, held to highlight Democrats’ unprecedented partisan filibusters of a handful of President Bush’s judicial nominees.

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