Former Sen. Chuck Hagel, President Obama's nominee to become the Secretary of Defense, struggled during his confirmation hearing last week, but that's hardly derailed his chances. Thus far, Hagel has not yet lost the support of any Senate Democrats, and over the weekend, he picked up the backing of a second Senate Republican, Nebraska's Mike Johanns.
With this in mind, when Hagel's nomination is brought to the floor for an up-or-down vote, there's no real doubt that a majority of the Senate will vote to confirmation him. The question for Republicans, then, is whether to allow the up-or-down vote to happen.
Since Hagel appears to enjoy the support of most, if not all, Democrats, Republicans would have to filibuster his nomination -- something that has never been done to a Cabinet nominee since the advent of the 60-vote threshold nearly four decades ago, according to Senate records.
Several Cabinet nominees have failed to win the backing of a majority of senators -- and others have withdrawn their names before reaching the Senate floor -- but a filibuster would mark a serious breach in the unwritten protocol that governs the Senate.
I've been digging around for two weeks, trying to find an example of a cabinet secretary facing a filibuster, and my research is in line with Roll Call's findings -- it just hasn't happened. Not only has no nominee ever been defeated by a filibuster, no nominee (since the cloture threshold was moved to 60 votes) has ever even faced a filibuster.
The closest example I could find was Ronald Reagan's nomination of C. William Verity to serve as the Secretary of Commerce in 1987. At the time, Sen. Jesse Helms (R-N.C.) threatened to filibuster Reagan's choice because Verity supported increased trade with the USSR. (Helms argued Verity supported "selling the Soviets the rope with which to hang the free world.") But Helms eventually pulled back, dropped his threats, and the nominee was approved on an 84-11 vote.
In 2006, there was also a cloture vote on Dirk Kempthorne's Interior nomination, but only eight Senate Democrats registered their opposition, there was no filibuster or attempt to block an up-or-down vote, and Kempthorne was confirmed with a voice vote.
So, in 2013, Republicans have to decide whether they're prepared to break new ground.
From the Roll Call report:
No Republicans have said yet that they will demand Hagel clear that 60-vote hurdle, but the possibility has been bubbling below the surface in the Senate in recent days.
An aide to Senate Minority Whip John Cornyn of Texas, who has been among the most vocal opponents of Hagel's nomination, said Feb. 1 that "all options are on the table." [...]
Top aides insist there is no discord among leaders, but statements made in the wake of Hagel's highly scrutinized appearance before the Senate Armed Services Committee indicate there could be a difference in opinion. The consensus among leadership aides, however, is that if a filibuster is to happen, it likely would be staged by a junior member.
There is no formal head count on whether a filibuster would block Hagel or whether it would fail, but it would cross a line in the sand when it comes to Senate norms. And if you're thinking it might reinvigorate the debate over reforming the institution's filibuster rules, you're not the only one.