Whether they’ll cop to it or not, Republicans are currently engaged in a filibuster of Chuck Hagel’s nomination to be Defense secretary.
Jim Inhofe, Oklahoma’s conservative senior senator, has attempted to place a hold on Hagel’s nomination. Lindsey Graham has indicated his willingness to do the same. Generally, such requests are granted as a courtesy by the majority leader, but Harry Reid has opted not to honor them in this case and has gone ahead and filed a cloture motion. Thus, 60 votes will be required for there to be a simple up/down vote on the nomination. As Jonathan Bernstein writes, there is no way to call this anything but a filibuster.
“What a shame,” Reid lamented after filing his motion on Wednesday. “That’s the way it is.”
Reid may simply have been speaking as a White House ally there, but he’s also a Senate institutionalist, one who – to the consternation of many progressives activists – balked at an effort last month to water down the chamber’s filibuster rules. Reid clearly believes in the unique individual prerogatives that the Senate grants its members and is loath to break with tradition and create new procedural rules and precedents – especially if they might come back to bite his party the next time it’s in the minority. From an institutionalist’s standpoint, what’s happening now with the Hagel nomination is very troubling.
Simply put, we’re in uncharted territory. Look at it this way: Hagel is on course to be the first Pentagon nominee and only the third Cabinet nominee ever to face a 60-vote requirement for confirmation. But even that understates it, because the other two – C. William Verity and Dirk Kempthorne – weren’t up against serious filibusters.
Verity was a 70-year-old retired steel executive when he was nominated by Ronald Reagan in 1987 to run the Commerce department. His nomination wasn’t particularly controversial, but it did stir the ire of the far right. (Hard as it is to believe now, there were plenty of conservative leaders who doubted Reagan’s commitment to the cause during his presidency.) At issue was Verity’s enthusiasm for increased trade between the United States and the Soviet Union, a no-no for any Cold War-era hawk. Verity had previously spoken out against the Reagan administration’s policy of linking the emigration of Soviet Jews to trade goals.
This prompted Jesse Helms, who was a regular thorn in Reagan’s side in the ‘80s, to mount a filibuster. But it only succeeded in slowing down the nomination for a few days; when it was filed, the cloture motion passed on an 85-8 vote. The final tally for Verity’s October ’87 confirmation: 84-11.
The other Cabinet choice to confront a filibuster was Dirk Kempthorne, George W. Bush’s pick to run the Interior department in 2006. Kempthorne was Idaho’s governor at the time, and he was also a former senator. The filibuster against him amounted to election year grandstanding by Florida’s Bill Nelson, who was up for reelection that November. To protest the Bush administration’s efforts to encourage oil and gas drilling off his state’s coast, Nelson placed a hold on the Kempthorne nomination, forcing Republicans to come up with 60 votes. Again, this slowed the nomination slightly, but it was purely a symbolic stand. Cloture passed by an 85-8 margin and Kempthorne was approved by the full Senate on a voice vote.
The dimensions of the Hagel filibuster aren’t yet clear, but there are ominous signs that a cloture vote might actually be suspenseful. There are 55 Democrats in the Senate now, and none of them have come out against Hagel. Assuming they stay united, five Republicans will need to cross over for cloture to be invoked. Earlier this week, when he reiterated his opposition to a filibuster, it looked like John McCain would lead the way; but he has since softened his stance and now is suggesting he could support a filibuster after all. Some Republicans seem poised to take their cue from McCain. So if he opposes cloture, Friday’s scheduled vote could get interesting.
For now, only two Republicans, Nebraska’s Mike Johanns and Mississippi’s Thad Cochran, have expressed support for Hagel’s nomination. Presumably, they will vote for cloture. And Susan Collins on Wednesday said that she plans to vote against Hagel but that “I cannot join in a filibuster to block each senator’s right to vote for or against him.” That would seem to leave Reid, for the time being anyway, with 58 of the 60 votes he needs.
Hagel is still likely to get his 60 votes and be confirmed. And if McCain joins with Collins and brings a bunch of Republicans with him, the cloture vote might end up quite lopsided. But don’t be fooled: The character of this filibuster is markedly different from the two previous Cabinet-level filibusters. Not a single Republican on the Armed Services Committee voted to recommend Hagel’s confirmation on Tuesday. That doesn’t mean they’ll all join a filibuster, but it shows how the Hagel nomination has largely become a party-line affair, which is unusual enough for a Cabinet nomination.
There are some potentially serious short- and long-term consequences to all of this, which should worry both parties. If Republicans are actually able to derail Hagel with a filibuster, it would shatter tradition and might lead to similar filibusters in the future – both for Obama’s nominees and for nominees of future presidents from both parties. It could also spur Reid to rethink his resistance to major Senate rules changes and to reopen the idea of using the nuclear option. And even if the filibuster is broken, a mostly party-line vote on Hagel’s confirmation could set a bad example too. After all, the White House’s party controls the Senate now, so it theoretically has the votes to confirm its nominees (assuming they get up/down votes). But what happens if party-line votes for Cabinet picks become the norm and, sometime in the not-so-distant future, the White House’s party is in the minority in the Senate?