Will Democrats blow up the Senate to make it easier to confirm executive branch nominees?

From Politico:

But it’s clear the majority leader wants to get something done and find 51 Democrats to support an unprecedented move to employ the so-called nuclear option — changing the rules so executive branch nominees can no longer be blocked by filibusters requiring 60 votes to break.Judicial nominees and legislation would very likely still face a 60-vote threshold on filibusters. . . .

I have a new book coming out next month, "Dumbing Down the Courts," that ironically shows that Obama has had a relatively easy time getting executive branch nominees confirmed.

An article in the LA Times makes this threat of rule changes all the more explicit:

Senate leaders had considered holding a vote this week to confirm Richard Cordray as head of the Consumer Financial Protection Bureau, a nomination Republicans have maintained they would filibuster unless the Obama administration agreed to overhaul the agency. . . . 

Action is also pending on two of Obama’s Cabinet nominations — Thomas E. Perez for Labor secretary and Gina McCarthy for EPA administrator — after party-line votes in Senate committees last week. Two other Cabinet picks face confirmation hearings later this week. 

At his weekly news conference, Reid told reporters that he would not bring those nominations to the full Senate until after it considers two major pieces of legislation, the farm bill and comprehensive immigration reform. 

“So we'll have to look at July,” he said, with the possible exception of a pending nominee for the D.C. Court of Appeals. “We're going to make sure that all the nominees have votes.” 

Reid declined to discuss further changes to the Senate’s filibuster rules Tuesday. But in recent weeks he has been ratcheting up pressure on Republicans over what he has called “blanket, partisan obstruction” of executive agency choices. . . .

The New York Times from May 16th adds this:

. . . Gina McCarthy, Mr. Obama’s choice to lead the Environmental Protection Agency, and Thomas E. Perez, the nominee to be secretary of labor, were approved in committee with only Democratic votes. Their nominations now go before the full Senate, where they face likely Republican filibusters. 

The threat of further Republican attempts to thwart the president’s ability to assemble his second-term cabinet has increased the likelihood of a fight over the Senate’s rules, which allow the minority party to insist on a 60-vote threshold for almost every Senate action. . . . 

Republicans insist they are standing in the way of nominees who merit more scrutiny and pointed to the advancement of two more Obama administration choices on Thursday: Sri Srinivasan, whose unanimous approval by the Senate Judiciary Committee sends him to the full Senate for confirmation to the United States Court of Appeals for the District of Columbia, and Ernest J. Moniz, the president’s pick for energy secretary, who was confirmed on a 97-to-0 vote by the full Senate on Thursday afternoon. . . .

Moniz is fairly radical guy and yet he got through without much trouble.

Even a couple of years ago, who would have believed that we would be about to confirm a Supreme Court Justice who believed in banning books?

Here are some arguments that Elena Kagan approved of as the Solicitor General. Here are the arguments she approved of in March 29, 2009:

CHIEF JUSTICE ROBERTS: If it has one name, one use of the candidate's name, it would be covered, correct?
MR. STEWART: That's correct.
CHIEF JUSTICE ROBERTS: It's a 500-page book, and at the end it says, and so vote for X, the government could ban that?
MR. STEWART: Well, if it says vote for X, it would be express advocacy and it would be covered by the pre-existing Federal Election Campaign Act provision.
CHIEF JUSTICE ROBERTS: No, I'm talking about under the Constitution, what we've been discussing,
if it's a book. MR. STEWART: If it's a book and it is again, to leave -- to leave to one side the Official - Subject to Final Review produced -- question of.
CHIEF JUSTICE ROBERTS: Right, right. Forget the --
MR. STEWART: -- possible media exemption, if you had Citizens United or General Motors using general treasury funds to publish a book that said at the outset, for instance, Hillary Clinton's election would be a disaster for this --
CHIEF JUSTICE ROBERTS: Take my hypothetical. It doesn't say at the outset. It funds -- here is -- whatever it is, this is a discussion of the American political system, and at the end it says vote for X.
MR. STEWART: Yes, our position would be that the corporation could be required to use PAC funds rather than general treasury funds.
CHIEF JUSTICE ROBERTS: And if they didn't, you could ban it?
MR. STEWART: If they didn't, we could prohibit the publication of the book using the corporate treasury funds.

Ted Olson summarized the Obama administration's argument in the second oral arguments on the case on September 9, 2009.

THEODORE B. OLSON: The government admits that that radical concept of requiring public support for the speech before you can speak would even authorize it to criminalize books and signs. . . .

Here are the revised arguments that Kagan herself made where she backed away from the argument on books and argued that the current law only applied to short books (pamphlets) on September 9, 2009:

CHIEF JUSTICE ROBERTS: But we don't put our -- we don't put our First Amendment rights in the hands of FEC bureaucrats; and if you say that you are not going to apply it to a book, what about a pamphlet?
GENERAL KAGAN: I think a -- a pamphlet would be different. A pamphlet is pretty classic electioneering, so there is no attempt to say that 441 b only applies to video and not to print. . . .

Gallup: Kagan has the lowest approval rating of any nominee who is likely to make it on the court

This is a pretty surprising result from the Gallup survey:

Typically, support for nominees does not change much after their hearings. Instead, Gallup usually finds increases in the percentage of Americans opposed and decreases in the percentage with no opinion. The percentage without an opinion on the Kagan nomination was the same before and after her hearings, which may indicate these were not widely followed by the average American.

The Senate Judiciary Committee will vote on Kagan's nomination next week, with the full Senate voting later this summer. Kagan is expected to be confirmed, given the Senate's large Democratic majority.

Among the general public, a majority of self-identified Democrats, 68%, favor Kagan's confirmation, compared with 43% of independents and 21% of Republicans. A majority of Republicans, 60%, are opposed.

If confirmed, Kagan would be the first successful nominee in recent years whose nomination was backed by less than a majority of Americans in the final poll before the Senate confirmation vote (or, in the case of Harriet Miers, before her nomination was withdrawn). . . .

"Months of 'Republican obstruction'?" Obama Appoints 15 During Recess

How can there be a significant backlog because of Republican obstruction when the Dems had 60 votes in the Senate until the end of January? Note that Obama was making this clear earlier in the year that he was thinking of doing this.

President Barack Obama, citing months of "Republican obstruction" to his nominees for various administration posts, said he will make recess appointments of 15 nominees, including union lawyer Craig Becker to the National Labor Relations Board.

Mr. Obama's decision to appoint Mr. Becker is a win for labor unions that had helped the president win passage of his health care overhaul. Republicans and business groups had fought Mr. Becker's nomination, saying he wouldn't be impartial on a board that supervises union elections and referees disputes between employers and employees. Mr. Obama said he will also make a recess appointment of Democrat Mark Pearce to the NLRB, but not the pending Republican NLRB nominee, Brian Hayes.

Mr. Obama also said he will fill two top Treasury Department posts by making recess appointments of Jeffrey Goldstein as Under Secretary for Domestic Finance and Michael F. Mundaca as assistant secretary for tax policy.

Mr. Obama telegraphed earlier this year the likelihood that he would use recess appointments to bypass Republican Senate opposition. By the White House count, 217 nominations have been pending before the Senate for an average of 101 days each. Of those nominations, 34 have been awaiting action for more than six months, the White House said in a statement Saturday.