Millett is the first nominee approved by the Senate not subject to a 60-vote threshold. Senate's 'nuclear' fight isn't over

Senate Democrats started capitalizing on their historic rules change Tuesday by confirming one of President Barack Obama’s picks to a powerful circuit court and blowing past a GOP filibuster of a separate nominee.

It was the first test of the new normal in the Senate, where Democrats rewrote the rules last month to allow most executive nominations to move forward and win passage on a simple majority vote instead of the 60-vote threshold that was standard for decades. Republicans, who now have few options to block Obama’s nominees, are fuming over the change and made clear they won’t make life easy for Democrats.


Shortly after the Senate voted 56-38 to confirm Patricia Millett to the D.C. Circuit Court of Appeals, Minority Leader Mitch McConnell attempted to change the rules back and restore the 60-vote threshold.

( Also on POLITICO: Reid, Alexander feud over nominees)

“They did this for one reason: to advance an agenda the American people don’t want. It’s an agenda that runs straight through the D.C. Circuit — so now they’re putting their people in place, to quote one member of their leadership, ‘one way or another,” McConnell said. “This vote isn’t about any one nominee. It’s not about Patricia Millett. It’s about an attitude on the left that says the ends justify the means — whatever it takes.”

But McConnell’s push failed along party lines, 51-45 and the Senate quickly moved to use the new lower threshold to clear a filibuster of Rep. Mel Watt (D-N.C.) to lead the Federal Housing Finance Agency, 57-40.

Watt and Millett were both previously blocked by Republican filibusters.

One GOP source did not rule out further attempts by Republicans to force more votes on reconsidering the rules change, which took place by a majority vote and is known as the “nuclear option.” The lower threshold applies to all presidential nominations except those to the Supreme Court.

( On POLITICO Magazine: Who's in Washington purgatory?)

Though Senate Democrats can now move Watt, Millett and other high-profile nominations through the Senate without Republicans, it’s going to be a partisan grind that could also jeopordaize the practice of unanimously approving noncontroversial, lower-level nominees.

In a bit of theater on Monday, Senate Majority Leader Harry Reid (D-Nev.) attempted to move more than 70 nominees — including Jeh Johnson to lead the Department of Homeland Security and Janet Yellen to chair the Federal Reserve — through the Senate in one fell swoop, a move that Sen. Lamar Alexander (R-Tenn.) quickly rejected. Reid then was forced to set up procedural votes on 10 nominees, including Johnson and several lower-level nominations, that could take days to tackle if Republicans and Democrats continue to feud over the chamber’s rules.

Despite the partisan flare-ups in the aftermath of “nuclear option,” Democrats applauded the confirmation of Millett to the country’s second-most powerful court, the first of many nominees who will soon be approved under the new Senate rules.

”I’m pleased that in a bipartisan vote, the Senate has confirmed Patricia Millett,” Obama said in a statement. “She has served in the Department of Justice for both Democratic and Republican Presidents. I’m confident she will serve with distinction on the federal bench.”

GOP Sens. Lisa Murkowski of Alaska and Susan Collins of Maine were the only Republicans to support Millett.

In the coming days, Senate Democrats plan to fill out the D.C. Circuit with two additional Obama nominees, tilting the ideological balance of the important court back to the Democrats. Both Robert Wilkins and Nina Pillard’s appointments to the D.C. Circuit were previously denied by the GOP, but now it’s only a matter of time before they join Millett on the bench.

Beyond denying Reid’s request to approve nominations en bloc of and McConnell’s request for Democrats to reconsider the “nuclear option,” it remains to be seen if Senate Republicans plan further retribution to the unilateral rules change. The GOP can deny Democrats consent to swiftly hold votes, which many believe is sure to happen. Republicans also can object to run-of-the-mill procedural requests, which could further bog down the chamber in partisanship. And the party can also boycott committee votes to further stymie Democrats.

Perhaps more than anything, Republicans are upset they have lost leverage in getting information from the Obama administration as a condition of supporting the president’s nominees. Sen. John McCain (R-Ariz.) said he is “very unhappy” that Johnson hasn’t answered his question about what it will take to secure 90 percent of the border with Mexico — and he’s deciding whether or not to grind the Senate’s gears down. He said that “the anger is there” among his colleagues, nearly three weeks after the rules change.

“If you just rubber-stamp everybody and don’t pose any parliamentary resistance, then what?” McCain said in an interview Monday. “Then you’re setting precedent that they can nominate anybody you want.”

The Senate GOP huddled at party lunch shortly after the votes on Millett and Watt, seeking to settle on a strategy in a post-nuclear option world.

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Patricia Millett