Editore"s Note
Tilting at Windmills

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November 16, 2010

PUTTING NOMINATIONS HIGH ON THE SENATE'S TO-DO LIST.... The last two years have been pretty busy in the Senate, with a variety of landmark accomplishments -- each considered at a glacier's pace -- keeping the chamber's calendar filled practically from the outset.

Next year, the Senate, still under Democratic control, is likely to have a lot more free time. The legislative schedule will very likely crawl to a stop, thanks to one of the most far-right House chambers in American history, which will either fail to pass good bills, or approve bad bills the upper chamber will ignore. The Senate, likewise, probably won't bother tackling major initiatives, knowing they'd die in the House.

So, what are senators to do for the next two years? Brian Beutler reports on a wise course of action.

[W]hile the House passes legislation the Senate has no interest in considering, Majority Leader Harry Reid will have much more time, if he chooses, to devote to confirming a large backlog of Obama's judicial and executive branch nominees -- particularly numerous non-controversial picks, who will have to be renominated next year.

That's certainly what advocates would like to see.

"Reid should concentrate Floor time on must pass bills, message and other votes that highlight differences and important matters that are or should be non-controversial, including confirming lifetime federal judges," Glenn Sugameli, an advocate for swift judicial confirmations, tells TPM. "All of Obama's nominees to circuit and district courts have had the support of their home-state Republican and Democratic senators and the vast majority have been non-controversial nominees who have been approved by the Judiciary Committee without objection and approved unanimously when they finally receive usually long-delayed Floor votes."

To be sure, Senate Republicans will do what they've been doing -- slowing everything down, blocking as many nominees as they can. But don't forget, the Senate will have nothing else to do for the better part of two years. Over the last two years, Reid and the Democratic leadership had a lengthy to-do list, and couldn't eat up the calendar on nominees. GOP obstructionism meant it took three days for the Senate to consider one nominee, during which time the chamber could do nothing else, so more often than not, Reid just didn't bother.

But that won't be much of a hindrance in 2011 and 2012, when the entire lawmaking process goes from difficult to impossible. Why not use that time to let the Obama administration actually have the staff it needs and start dealing with the vacancy crisis on the federal courts?

The latter, in particular, is one of the overlooked scandals of the last two years. Attorney General Eric Holder recently explained that "our judicial system desperately needs the Senate to act.... The federal judicial system that has been a rightful source of pride for the United States -- the system on which we all depend for a prompt and fair hearing of our cases when we need to call on the law -- is stressed to the breaking point."

Republicans, engaging in tactics that no one has ever seen before, have brought the entire process to a generational standstill. It's untenable and arguably dangerous. It is no exaggeration to say the status quo is the worst it's ever been -- the Alliance For Justice recently reported that President Obama "has seen a smaller percentage of his nominees confirmed at this point in his presidency than any president in American history."

If I'm Harry Reid, I'm getting ready to make this one of my top priorities in the next Congress.

Steve Benen 10:40 AM Permalink | Trackbacks | Comments (12)

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Comments

Why don't they just recess appoint the lot of them? That is an option right?

Posted by: Matt on November 16, 2010 at 11:03 AM | PERMALINK

How about pay for performance? 100 Senators times $174000 per person times some average over 50 or 60 years -- bills passed, appointments ruled upon, etc. versus accomplishments of the 2011 Senate -- a spending cut winner even the tea party types could appreciate.

Posted by: Ray Waldren on November 16, 2010 at 11:22 AM | PERMALINK

110% endorsed.

Posted by: 4jkb4ia on November 16, 2010 at 11:50 AM | PERMALINK

Everyone fulfilling their constitutional responsibilities, etc.

Posted by: 4jkb4ia on November 16, 2010 at 11:51 AM | PERMALINK

Anyone with an IQ within 10 points of their body temperature should be able to understand that NOTHING will be done in the Senate unless the filibuster is broken. That takes 50 votes + Biden. Care to make any bets on that happening? I didn't think so.

In that case, BHO and a set of Senators need be replaced asap, whether or not they have IQ's of 180 they are political idiots and/or irredeemable wusses. After a while, who cares what their exact problem actually is.

Posted by: gdb on November 16, 2010 at 11:54 AM | PERMALINK

I'm sorry, but this just seems dumb.

First, Executive branch nominees (judges included) didn't get slow-tracked because of a lack of committee time. Most were 'held' under the Senate rules that allow any Senator to put a hold on any nominee for any reason at any time. Absent a rule change in the Senate (and I haven't heard any passion for such a change among actual Senators), this obstructionist route won't change. Maybe Beutler is suggesting that now Harry Reid will be able to hold more press conferences decrying Republican obstructionism, and that anyone will care, but no he won't and no they won't.

And why think that the Senate will be less busy this term than last?? The House will pass all manner of idiocy over the next couple of years, and Reid will be plenty busy holding his fractious caucus together to vote this crap down or filibuster it. And he'll be holding lots of press conferences trying to rebut Republican charges that he's the real obstructionist for doing all of the above.

Every judicial nomination that the Republicans kill in this session is another conservative they can appoint in 2012 if they take the White House. In the face of that incentive, with 6 fewer votes, Harry Reid is going to push through a bunch of federal judges?? I call bullshit.

Posted by: WSP on November 16, 2010 at 11:55 AM | PERMALINK

Matt asks: Why don't they just recess appoint the lot of them? That is an option right?

For Executive Branch appointees, but not for judges.

WSP points out: First, Executive branch nominees (judges included) didn't get slow-tracked because of a lack of committee time. Most were 'held' under the Senate rules that allow any Senator to put a hold on any nominee for any reason at any time. Absent a rule change in the Senate (and I haven't heard any passion for such a change among actual Senators), this obstructionist route won't change.

Actually, the Senate passed a resolution this year theoretically ending anonymous holds. So there is real Senate support for the idea.

The problem is that a 'hold' doesn't formally exist in the Senate rules; rather, it's a consequence of other rules.

The real force behind a 'hold' is the 30 hours of debate after defeating a filibuster, which either party can require, whether or not (and it's always 'not') they have any actual interest in debating the issue or nominee for anywhere near that amount of time.

When a filibuster-proof majority exists, the Majority Leader can request unanimous consent to move directly to a vote, which avoids both the cloture vote and its 30-hour debate requirement.

A 'hold' is simply a Senator's giving notice that s/he's going to refuse to give consent to a unanimous-consent request, which obviously defeats unanimous consent, which means a cloture vote will be needed, and almost certainly the 30 hours of post-cloture debate as well.

So if, at the beginning of the next Congress, the 53 Dems can agree to reduce that 30 hours of debate to, say, 1 hour for each party, Senators could still exercise holds, but they wouldn't be much of an impediment any more.

And this could actually happen.

WSP continues: And why think that the Senate will be less busy this term than last?? The House will pass all manner of idiocy over the next couple of years, and Reid will be plenty busy holding his fractious caucus together to vote this crap down or filibuster it.

He could just choose not to act on any of it. That's how the House's climate change bill, as well as a bunch of other House-passed legislation in this Congress, met its end. The Senate simply didn't take it up.

To block legislation passed by one house of Congress, all the other house has to do is: nothing.

Posted by: low-tech cyclist on November 16, 2010 at 12:44 PM | PERMALINK

Didn't Bush recess appoint judges? What has changed in the interim to make it an nonviable option?

Posted by: Raptor on November 16, 2010 at 1:38 PM | PERMALINK

But the Republicans in the Senate can still filibuster every nomination that comes before them. The only difference will be that they'll have more time to do that now that the House can be counted on to do jack squat over the next 2 years.

-Z

Posted by: Zorro on November 16, 2010 at 1:46 PM | PERMALINK

Wimps always get beat up. Sad. But that is just the way of the world. Always has been. Always will be.

Posted by: SW on November 16, 2010 at 1:53 PM | PERMALINK

No, Bush did not recess appoint judges. What makes it a non-viable option then and now is that federal judges are a lifetime appointment but recess appointments only last until the end of the next Congress.

Using recess appointments for executive branch positions that will certainly be filled with new people the next time Presidency changes parties, and many of which see turnover every 2-4 years even when the Presidency stays within the same party, is one thing.

Using them when you are going to have to fight the same battle all over again in a year or two and when not fighting it to a conclusion (i.e. Senate confirmation) means that the next President gets to fill that lifetime position, is not just pointless, it is counterproductive.

Posted by: tanstaafl on November 16, 2010 at 2:48 PM | PERMALINK

The main problem with politics in this day and age is that repubs are busy planning the next election and plotting the next round of obstructionism to screw up the dems and the dems are busy dropping thier pants and bending over every time a repub enters the room. The end result, pun intended, is nothing constructive gets done.

Posted by: Schtick on November 16, 2010 at 3:17 PM | PERMALINK
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