Nuclear option fallout imperils Obama's nominees

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Politics,White House,Barack Obama,Senate,Harry Reid,PennAve,Susan Crabtree,Nuclear Option,Debo Adegbile,Nominations

When Senate Democrats executed the so-called nuclear option last year and changed their chamber's rules for votes on President Obama's nominees, administration officials breathed a sigh of relief.

As long as the nominees were qualified, they thought Senate Majority Leader Harry Reid, D-Nev., could push them through a deeply divided Senate with a simple majority, not the 60-vote threshold previously required to end debate and proceed to a final up-or-down vote.

The Senate Democratic caucus has 55 members so there appeared to be little Republicans could do to prevent the chamber from rubber-stamping Obama's picks.

But Democrats overlooked a fatal flaw in the strategy: In a tough election year when Obama's approval ratings are low, Democrats in tough races could defect on key nominees.

In March, that has already happened with two of the president's choices for influential administration posts.

Earlier this month, several Senate Democrats joined Republicans in voting down Debo Adegbile, Obama's choice to head the Justice Department's Civil Rights Division.

Conservatives aggressively opposed Adegbile's nomination because of his legal work in defense of Mumia Abu-Jamal, who was convicted of the 1981 murder of a Philadelphia police officer.

Eight Democrats ended up voting against confirmation — with Reid initially voting in favor and then switching his vote to no, to allow him to bring up the nomination again.

Adegbile became the first Obama nominee blocked under the new Senate rules. The Democrats who voted against Adegbile were: Sens. Chris Coons, Del.; Bob Casey, Pa.; Joe Donnelly, Ind.; Heidi Heitkamp, N.D.; Joe Manchin, W.V.; Mark Pryor, Ark.; and John Walsh, Mont.

Obama slammed the vote in a statement, arguing that senators had “denied the American people an outstanding public servant.”

Following that bump in the road, Reid moved on to Dr. Vivek Hallegere Murthy, a Harvard and Yale-educated former emergency room doctor, whom the president chose for surgeon general.

Even before the nomination came to the floor for debate, however, a group of conservative Democrats derailed it, letting Reid know they planned to oppose Murthy.

This time the National Rifle Association flexed its muscle on Capitol Hill, opposing Murthy because of his vocal support for gun-control measures.

White House spokesman Jay Carney this week said administration officials are “recalibrating” their approach to Murthy's nomination. Carney declined to say whether Obama will be forced to make a new surgeon general pick but there's no clear path for the Senate to reconsider Murthy - especially in a tough election year with control of the chamber at stake.

Conservative groups who keep a close watch on the administration's nominees say the failures of Adegbile’s and Murthy's nominations have sent a clear signal to Obama that his nominees this year are hardly a slam-dunk despite Reid’s rule change.

“Obama and Senate Majority Leader Reid now have a governance problem where they can no longer blame Republicans or the filibuster for their inability to confirm radical nominees,” said Rick Manning, vice president of public policy and communications for Americans for Limited Government, a conservative nonprofit.

“Instead, red- and purple-state Democrats have lost this filibuster shield and are having to choose whether to walk the political plank in support of Obama's indefensible personnel choices.”

Manning and other groups on the right argue that Reid's inability to cobble together 50 Democrats to support Obama's nominees is a self-inflicted wound and one that is likely to persist for the remainder of the year.

Tom Fitton, president of the conservative watchdog Judicial Watch said Reid miscalculated went he went nuclear last fall and prevented the senators from filibustering a president's nominees.

Often times, he said, senators could have it both ways: They could mask their opposition to a nominee and vote for cloture — a procedural vote that shuts down debate on the nominee and allows the Senate to proceed to a final vote if 60 senators vote in favor.

The same senators could then oppose the nominee on final passage, which only requires a simple majority vote. They could then sell their final “no” vote back home as opposition to the nomination even though without their “yes” vote on cloture, the nominee would have never made it over the Senate's procedural hurdles.

“A lot of senators were spared some tough votes and they were able to vote against the nominee and mask their prior 'yes' vote,” Fitton said. “That's no longer available, and that's a good thing for accountability.”

Fitton said Judicial Watch has long opposed the filibuster and the 60-vote threshold required to move forward to a final vote on a nominee regardless of whether Republicans or Democrats control the Senate and the White House.

“Under the old system,” Fitton said, “these two nominees by the president might have been able to sneak by, but because there's more accountability in the system there's no hiding votes for some Senate Democrats.”

Obama could push for Murthy again after the election, but the nomination has attracted enough scrutiny that it might not be politically feasible for Democrats who initially opposed him to support him in a lame-duck session or non-election year.

Obama could use his executive power to appoint nominees during a technical Senate recess, but two federal courts have ruled against him for making recess appointments to the National Labor Relations Board while the Senate was in pro forma session, which Republicans argue prevents such appointments.

The Supreme Court is now considering whether Obama's recess appointments are legal, and critics predict he would be unlikely to rile the high court by testing those waters again before it renders a decision.

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Susan Crabtree

White House Correspondent
The Washington Examiner