Confirmation checklist for post-nuclear Senate

As the Senate races toward its year-end recess, all observers are surveying the confirmation landscape after Democrats unleashed the nuclear option last month. With a majority vote, the Senate changed its rules to require a majority vote when ending filibusters of, and voting on, lower federal court nominees and high level executive nominees. Here is a list that confirmation junkies made and checked twice last week to see which senators were naughty or nice, and what may bode this week before the Senate recesses:

1. D.C. Circuit Nominee Patricia Millett’s 12/9-12/10 Floor Vote: The exceptionally qualified, mainstream nominee earned cloture 55-43 minutes after Democrats invoked the nuclear option, but she captured no GOP votes. Inclement weather postponed her final vote until Tuesday. On Monday evening, Sen. Harry Reid (D-Nev.), the Majority Leader, filed cloture petitions on four district nominees, who had waited longest on floor votes. That action prompted Sen. Lamar Alexander (R-Tenn.) to vociferously criticize Democrats for detonating the nuclear option and supplied the first hint of the GOP’s post nuclear mood. The second concrete signs came on Tuesday, when two Republicans - Sens. Susan Collins (Maine) and Lisa Murkowski (Alaska) - voted to confirm Millett and the debate included no discussion of her candidacy’s merits. However, Sen. Charles Grassley (R-Iowa), the Judiciary Committee ranking member, accused Democrats of having a “radical agenda [and attempting] to remove any meaningful check on that agenda.”

2. Federal Housing Finance Agency Nominee Rep. Mel Watt’s (D-N.C.) 12/10 Cloture and Floor Votes: Republicans filibustered Watt and did not appear to distinguish executive from judicial nominees or grant the sitting House member much courtesy when only two GOP senators favored his confirmation.

3. D.C. Circuit Nominee Cornelia Pillard’s 12/11-12/12 Cloture and Floor Votes: The highly qualified, moderate nominee won cloture and floor votes with only 2 GOP ballots. The miniscule number of Republicans who favored her were another instructive signal of their disposition, although some have opposed her on ideological grounds. Sen. Mitch McConnell (R-Ky.), the Minority Leader, characterized Pillard as a “liberal ideologue” who would rubber stamp the administration’s “most radical legislative and regulatory proposals on the D.C. Circuit.” Moreover, her 1 a.m. 51-44 confirmation vote and the Senate’s all nighter attest to frayed relations.

4. Fifteen Circuit and District Nominees’ 12/12 Listing for Senate Judiciary Committee Executive Business Meeting Votes: The fifteen well qualified, uncontroversial nominees were listed for the first time. The meeting was postponed because the GOP took the rare step of refusing to waive the technical requirement that meetings not be held within two hours of the Senate convening.

5. Four District Court Nominees’ 12/12 Cloture and Floor Votes: Four district court nominees won cloture votes with some GOP support and final votes with considerable Republican support, even though all four received voice votes in committee, the GOP expressed no opposition on the nominees’ merits and three will fill judicial emergencies..

6. Five Judicial Nominees’ 12/18 Committee Hearing: Republican senators invoked procedural technicalities to prevent the hearing. Sen. Patrick Leahy (D-Vt.), the panel chair, responded by finding the GOP committee shutdown “consistent with the obstruction we have witnessed over the last five years, which has led to record high vacancies in federal courts throughout the country.” He threatened to reconsider longstanding policies that have protected the minority party’s rights, if “ this escalating obstruction [which] undermines the Senate’s constitutional responsibility of advice and consent” continues for judicial nominees.

7. Federal Reserve Chair Nominee Janet Yellen’s 12/19 Possible Cloture, and Floor, Votes: Watch for whether the GOP requires a cloture vote and whether it differentiates executive from judicial nominees. Because Yellen received significantly more Republican votes in the Banking Committee than the three D.C. Circuit nominees received in their Judiciary Committee party-line votes, Republican treatment of her may be less revealing.

8. D.C. Circuit Nominee Judge Robert Wilkins’ 12/19 Cloture and Floor Votes: The exceedingly qualified, centrist nominee, lost a November 18 cloture vote 53-38 with only 2 GOP ballots. Watch for whether he will have cloture and floor votes before the recess and, if so, whether his ballots parallel those of Millett and Pillard.

9. Fifteen Lower Court Nominees’ 12/19 Committee Debates and Votes: Watch for whether the GOP allows the committee to meet once or twice. If Republicans permit one meeting, watch for whether they request that all nominees, including those with strong home state GOP senator support, be held over until the next meeting, as has been standard Republican practice throughout President Barack Obama’s tenure. If the GOP does allow ballots, watch for whether it debates the merits of nominees’ candidacies, whether it requests roll call votes on any and, if so, how close those votes are.

10. 12/19 or 12/20 Recess of the 113th Congress’s First Session: Watch for whether any of the numerous committee-approved nominees receive up or down votes and, if so, how many. As recently as President George W. Bush’s Administration, the Senate tradition when recessing was to bundle together large groups of well qualified, consensus district and executive nominees and confirm them by unanimous consent, a custom abandoned in the Obama years. Because the courts have experienced nearly 90 vacancies over an unprecedented four plus years, watch for whether the Senate capitalizes on the opportunity to remedy or ameliorate that crisis. Also watch for whether the GOP returns any consensus nominees to the White House, action that would require January renomination and committee reconsideration.

Tobias is the Williams Chair in Law at the University of Richmond.