Tradition v. Partisanship: Holds in a Post-Nuclear Senate

Originally posted for the Government Affairs Institute at Georgetown.
Since roughly the 1950s, “holds” have been a staple of the Senate landscape. Though they can’t be found in the Senate rulebook or precedents, holds have played an important role in Senate operations. At times, holds have delayed or killed legislation, as well as executive and judicial nominations.  They also have been used to extract concessions. For example, senators use holds to bring their bills to the floor, to secure amendments, or as bargaining chips with the executive branch (particularly useful on executive branch nominees).

Ever since the Senate used the nuclear option on judicial and executive nominees, there has been a debate about whetherholds on nominations are dead and why. While they are not completely dead, the nuclear option drastically reduced their effectiveness from both a negotiating and delaying standpoint.

Why? A hold is effectively a threat to object to unanimous consent or to filibuster a nomination. Once a hold is made known, it is the majority leader’s prerogative to honor the hold or move ahead. The majority leader is the primary agenda setter in the Senate, so it is his decision. There are a lot of factors to consider, but time is the most important.  The majority leader has to weigh the importance of the nomination against the amount of time it will take to overcome the dilatory tactics that accompany trying to overcome a hold.

This means holds are effective on some nominations but not very effective on others. For example, holds on minor nominations – i.e., a district court judge or low level executive branch nominee – are particularly effective. It is unlikely the majority leader will want to spend a week of Senate floor time trying to overcome dilatory motions on a minor nomination. On the other hand, there is little chance the majority leader would honor a hold on a major nomination. Some positions are so important that the Senate must consider the nominee, regardless of the stalling tactics employed. For example, Janet Yellen, the Chairman of the Federal Reserve, would be considered, or at least voted on, regardless of the number of holds placed on her nomination.

In both senses, the nuclear option drastically reduced the effectiveness of holds. With only 51 votes required to invoke cloture, nominees can be considered and passed with only majority party votes.

What does this mean? As a tactical tool, holds are now much weaker. For one, there is no longer any need for the president or majority leader to consult with the minority leader on important nominations. In the pre-nuclear Senate, Republicans had significant negotiating power on big-time nominations like Yellen. It was significant enough that if they wanted, they could have denied cloture on Yellen and forced Obama to find another nominee. Today, the majority can effectively ignore the minority’s wishes and push ahead. Second, the Senate can now also move with ease to appoint nominees to more minor judgeships and executive branch positions. So even for nominations on which holds were considered the most effective, their utility is now drastically reduced.

This is where I depart from Jon Bernstein’s take. Yes, Republicans placed holds on almost all judicial and executive branch nominees. However, the effect of the nuclear option uniformly reduces the validity of a hold. The threat no longer carries the same weight. Not only will they not produce negotiating leverage, they also will not obstruct Senate operations to the same degree. The minority’s ability to prevent action, and therefore gain concessions if they wish, was undermined in a fundamental way. And as a result, the Senate has less reason to reach back to its tradition of bipartisanship.

The caveat is that this is temporary. Next Congress, the compromise that reduced debate time on more minor executive and judicial nominations will end. And as @Mansfield2016 points out, the minority could force 30-hours of debate on all nominations. This could have a huge effect. It is unlikely that the majority leader, whoever that may be, has 1) the followership in the respective caucuses to force all-night sessions on a routine basis or 2) the desire to use days of floor debate on lower level nominations, forcing the Senate to delay action on other bills or nominations.

In sum, the nuclear option has likely produced short-term relief for a president trying to fill the executive and judicial ranks. However, it has come at the expense of norms that encouraged the parties to interact. The next Congress will test whether the Senate is moving closer to a majoritarian type of institution.