Changing the rules

22 Nov


In the quintessential dramatic move yesterday, the Senate voted 52-48 to change its rules so that a simple majority is all that’s needed to approve presidential appointments to executive and judicial positions.

Questions: Will the Democrats who gave this measure their support live to regret it? Could the Republicans use this rule to approve their own party’s appointments with simple majorities in the future? Should the Dems have resorted to this “nuclear option” at all?

Answers: Maybe. Of course. They didn’t really have much choice.

The current situation was bad and getting worse.  Every Senate in the past 60 years has taken its time approving presidential appointments, but the current bunch is breaking all the records. Because the rules required at least 60 votes for approval, the minority could easily delay consideration of appointments for weeks or even months. And the Republicans had been doing that in spades.

Fifty-one of President Obama’s judicial nominations were pending as of this week. NPR’s Nina Totenberg said that compares to 18 at the same point in George W. Bush’s administration, 26 in George H.W. Bush’s presidency and 20 in Reagan’s. It’s taken an average of 204 days for one of Obama’s judicial nominations to come to a vote compared to an average of 59 days in the other administrations. If any progress were to be made, the Senate had little choice but to change the rules and speed things up.

Some of those unhappy with yesterday’s move say this enables the president to advance his agenda on things like climate change, financial regulations, economic stimulus and so forth, and they are shocked. Shocked!

Well, duh! That’s exactly why any president of either party gets to choose the folks who will run the cabinet-level departments and other executive agencies. The voters chose the general direction of the presidential agenda when they chose the president. It should surprise no one that the president will appoint people who will move us in that very direction.

And simple majority votes will also enable the courts to keep functioning efficiently. We can hardly live up to our nation’s promise of a (relatively) speedy judicial process if we have multiple vacancies on the federal courts.

Furthermore, judicial appointees are different from executive appointees. The president deliberately selects people to lead the executive branch who will support and promote his agenda. But, while he is likely to appoint judges he thinks will also be in sync with his ideas, judges are, by oath, beholden to the constitution far more than to whoever appoints them.

Senate Majority Leader Mitch McConnell says President Obama just wants to get his lackeys in those judicial seats, especially in the Court of Appeals for the D.C. Circuit, which plays a major role in upholding or rejecting federal regulations. McConnell implies that Obama appointees will automatically approve whatever the president’s administration comes up with.

I’m sure Obama hopes that’s true, but I have at least a little more faith in justices to make decisions based on their best judgment of the law and constitution, not just their political inclinations.

Of course, once the current Democratic majority in the Senate changes the rules on this matter, those rules will also apply if and when the Republicans again have a majority in the Senate.

But there’s no reason that either party should be able to obstruct the approval process just because it wants to. The Senate has plenty of ways to actually vet a nominee, including a hearing before the Senate Judiciary Committee. The Senate is supposed to examine a nominee’s qualifications and fitness for the position; it is not supposed to delay and block and delay some more simply because it wants to make life tough for the other party. We all suffer when that happens.

Institutional rules do matter, not only to procedure but also to policy. And they have consequences, only some of which can be foreseen when the rules are made. But an institution has to make the best rules it can to meet its goals and obligations. We should commend the Senate for facing reality yesterday.


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