Senate’s mutually assured obstruction

Supreme Court Justice nominee Robert Bork.Associated Press

IF REPUBLICANS win control of the Senate next week, they ought to prepare to defend themselves against a familiar threat: their own obstructionist tactics. That’s the trend in the almost evenly divided body: One side finds a secret weapon, then the other side perfects and redeploys it. If politics is war by other means, the Senate’s in an all-out nuclear arms race.

Just look at presidential nominees. All but the most controversial used to get through. But today, Senate confirmation is used to shut down not just an individuals, but an entire presidential agenda.

Historians trace the trend back to Ronald Reagan’s Supreme Court nomination of Robert Bork, a conservative judge who disagreed with parts of the landmark Brown vs. Board of Education decision. Democrats attacked Bork in an unusually personal and public campaign, a spectacle now known as “borking.”

Democrats invented “borking,” but Republicans expanded it, beyond lifetime appointments to the highest court. These days, little-known figures nominated to temporary posts get borked: Republicans borked Debo Adegbile, Obama’s pick to lead the Justice Department’s Civil Rights Division, because he’d filed an NAACP legal brief on behalf of former Black Panther Mumia Abu-Jamal. They borked Dr. Vivek Murthy, Obama’s nominee for surgeon general, because he dared to speak of gun violence as a public health issue.

To see how contentious nominations have become, count motions for “cloture,” which forces a vote when two sides can’t agree to move forward. From 1949 to 1968, there wasn’t a single nominee that needed a cloture motion. From 1967 to 1992, there were eleven. During Bill Clinton’s presidency, 22 nominees needed one. Under George W. Bush, 38 did. But under President Obama, that number has exploded, to a stunning 178, and counting.

Sometimes the fight over nominees is ideological. Other times, it’s aimed at crippling a government agency itself. Consider the National Labor Relations Board, which resolves disputes between labor and companies. Democrats blocked George W. Bush’s nominees to the board, on the grounds that they were too anti-labor. Under Obama’s presidency, Republicans blocked his nominees, on the grounds that they were too pro-labor. Pretty soon, there were only two people left on the five member board, so few that it could hardly function. That suited some in the GOP just fine.

Obama tried to get the board running again by making appointments during a Congressional recess, a power that previous presidents have used.

But it didn’t work, because Republicans refused to break for recess. They went home for vacation, but left a few solitary souls to gavel in pro forma sessions, just so Obama couldn’t appoint anyone. (They stole this dastardly tactic from Harry Reid, who used it against Bush.)

Obama made the recess appointments anyway, arguing that no congressional business was really taking place. The Supreme Court disagreed. With recess appointments off the table, the logjam over nominations is poised to get even worse.

The unprecedented difficulty Obama has faced staffing the government led Senator Harry Reid to institute the so-called “nuclear option” last year, which reinterpreted Senate rules to make it easier to vote on nominations. (Reid stole the idea from Republicans, who threatened it back in 2005.)

Since the rule change, it’s been easier to get high-profile nominees, like judges, through. But that progress came at a cost: Republicans have retaliated by dragging their feet on every nomination.

That’s why cloture motions have skyrocketed: Democrats have to file them all the time now, just to get ordinary votes on ordinary people. Cloture motions are time-consuming, triggering hours of mandatory debate. Now low-profile positions have a harder time getting through. Who has the time and energy to fight to bring a vote on a member of the Appalachian Regional Commission? Or for the deputy assistant to the director of the Office of Public Engagement?

This is the deadliest weapon Republicans have deployed so far: A state-of-the-art time waster. Forcing Democrats to fight for every nomination, even insignificant ones, uses up precious work days that could have been spent accomplishing something else.

“If you delay a noncontroversial appointment to a not very important office, that’s less time the majority is going to have for other things,” said Ian Ostrander, assistant professor of political science at Texas Tech University, who wrote his PhD thesis on presidential nominations. “That’s the logic of universal obstructionism.”

It’s a truly terrifying weapon, and one that Republicans might find pointing right back at them.