Ten Miles Square


November 23, 2012 6:30 AM Judicial Nomation Reform?

By Jonathan Bernstein

I think the strongest case for protection of minorities in the Senate is in confirmation of judges. It’s a lifetime appointment; we’re now being governed in part by decisions made thanks to elections in the 1980s and 1990s (and, for some appeals level judges, even earlier). One can certainly make the case that even a concurrent majority in both the presidency and the Senate should not be sufficient to automatically deserve to get their way.

And yet: judges have to be confirmed. Stalemate has to be avoided. Even the strongest supporters of the filibuster agree, I think, that a situation in which the minority party has the ability to simply shut down the confirmation process across the board isn’t the way to go. At the extremes: a Senate, even a Senate majority, which insists it will only confirm a particular choice and reject all others would be flipping the Constitutional procedure on its head, and it’s even worse if a minority of 42 or 43 or even 49 Senators is able to make that demand.

So the question is exactly how Senate minorities should have a say. I’ve been saying that I’m fine with continuing the current filibuster/cloture rules, but perhaps with a smaller supermajority needed (I also think there should be no holds at all: once a nominee clears Judiciary, they get a set vote at a time certain. But put that aside for now).

Matt Glassman, however, proposes something different that I find intriguing: replace unlimited debate and cloture with time limits. Long ones. He suggests (and I’m cleaning up from twitter): “If I were King of Senate, I would immediately switch to long limit on debate (say 30 hours) for all nominations —judicial or executive branch.” And “You could have really long time limits. If the majority wanted a single judge that bad, tying up the Senate floor for say, 150 hours, would be very costly.”

I find the idea…intriguing. It wouldn’t imply any romantic ideas about a talking filibuster; presumably it would involve a set period in which both sides would have a normal opportunity to speak, with a fixed time limit. No cots. No recipes and phone books (or, as I’ve argued, reading from the blogs and other easily available talking points). It would impose costs on the majority which they would be willing to bear if they are intense enough, which fits well with my feeling that intense majorities should be protected.

On the other hand, I’m not sure how one would set the incentives properly for the minority. We don’t want them to exercise their full rights to delay everything, right? We do want the minority to be protected (in some fashion) on judges they strongly object to; we don’t want them to use the rules to delay in cases where they have no objection to a judge, thus forcing the majority to choose between the (non-controversial) judge and a legislative agenda.

Remember, all of this from my point of view is from the perspective that minority party Senators would mostly be glad to take to the Senate floor and recite talking points, so that forcing them to talk per se doesn’t really impose much of a cost, and simple attrition can’t work (unless you set up the rules so severely that you’re basically establishing a physical challenge that cannot be met. That’s possible, but it strikes me as a horrible way to run things; if that’s what you want to do, just make the effect the rules and skip the drama).

So: I don’t know! I’m open to suggestions. The challenge: beginning from a premise that we do want to protect intense minorities, but also that we want to empower intense majorities, how do we design a system for judicial nomination confirmations? I’m not satisfied with any of the proposals out there, including, really, my own. I strongly believe that judges are different from executive branch nominations, and both are different from legislation. But what’s the best way to do it?

My instinct is that large time limits can be part of a package of judicial nomination reforms, but not the whole thing. But I really don’t know.

[Cross-posted at A plain blog about politics]

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Jonathan Bernstein is a political scientist who writes about American politics, especially the presidency, Congress, parties, and elections.
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  • Josef K on November 22, 2012 11:03 AM:

    Okay, here's a thought: any and all Presidential nominations that are brought to the Senate are considered to be approved and confirmed by the Senate after a period of no more than 90 days unless the candidate is rejected by an actual floor vote. This includes both judicial, cabinet, and sub-cabinet positions. The Senate should amend its rules so votes like this cannot entertain amendments and are not subject to Holds, fillibusters or whatever other procedural landmines might be employed.

    Its that simple. A nominee either receives an up-or-down vote, or it can be taken for granted the Senate has approved them by not wasting their time on them.

    I realize this sounds dangerously like making the Senate a rubber stamp; not being an expert in the Senate rules and regs, I suppose there remains plenty of space for mischief. However, its worth remembering the Senate is in complete command of its schedule, its rules, and how much business it will/won't undertake on a given day.

    Time for them to start either doing their job, or quit pretending they are.

  • jjm on November 22, 2012 7:44 PM:

    I like Josef K's suggestion. Time to put a real stop to Senate shenanigans without harming 'minority' rights...

  • OldStone50 on November 23, 2012 5:49 AM:

    I suppose the requirement here is to move the Senate rules and/or US federal traditions in as small an increment as possible while also achieving a better confirmation process. And although much is spoken about protecting minorities in the sense of protecting the weak, it seems to me that 1) this displays a remarkable lack of faith in democracy and that 2) the minority to be protected - today as in the days of writing the constitution - is really the economic elite, not the economic desperate.

    So, in the spirit of dull incrementalism, I, too, find Josef K's suggestion to be quite good - if no vote is taken within a set period then the Senate accepts the nominee through inaction (90 days seems a reasonable length of time to vet a nominee, but perhaps there should also be a minimum 60 day waiting period for the purpose of vetting before any up or down vote can be taken).

  • OldStone50 on November 23, 2012 6:01 AM:

    A quick addendum: it might also be necessary to have a rule that allows only 1 new nominee per work-week day so an Executive could not force the Senate to accept or reject nominees en masse. The Senate could handle one nominee a day, couldn't it?

  • OldStone50 on November 23, 2012 6:39 AM:

    To be clear: Presidents get to appoint an awful lot of persons - thousands and thousands. Does this strike anyone other than me as a bit, well, political? The rule to accept only one nomination per day would force the Executive away from patronage and, it is to be hoped, toward greater stability in governmental agency management which would lead toward promotion based a bit more on merit and a bit less on association. Hmmm... maybe too far from incremental.

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  • Anonymous on November 23, 2012 9:13 AM:

    Okay, I made this same suggestion on a different thread, but you asked for suggestions, so here it is: Extend the current rules, but only for six months or four months or even three. And then re-vote on a regular schedule. The majority party essentially puts the minority on notice that if it continues to abuse the rules, those rules will not be reaffirmed at the next rules vote. If judges are not getting confirmed or important legislation is languishing in committee, the majority can shift its focus from trying to confirm appointments and pass legislation to considering which rules it will drop and what it will replace them with.

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  • OKDem on November 24, 2012 5:36 PM:

    An additional refinement would be to make the debate equal to one hour per vote opposing cloture. That would make the debate longer the more controversial the nominee.

    As a practice matter, the knowledge that a vote will occur and the minority will lose would be a strong disincentive to filibuster.

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  • shk on November 25, 2012 2:53 PM:

    A better idea--end lifetime appointments. It lowers the stakes, and for every wizened sage, there is an old cranky despot.

  • Pistol Pete on November 26, 2012 4:21 AM:

    I would propose the following:

    Filibusters against judicial nominees would be eliminated.

    All judicial nominees would be appointed on an acting basis and assume their responsibilities immediately.

    The Senate would have one year from the date of nomination to hold a confirmation vote. If a majority vote in favor of the nominee, the nominee would then receive a lifetime appointment. If the nominee loses the confirmation vote, they would be required to leave the bench by the end of the current president's term (they could leave earlier if the president wishes to nominate someone else).

    If the Senate does not act on a nominee after one year, the nominee would be required to leave by the end of the president's current term, but could be renominated (and again serve in an acting capacity) if the president is reelected. The clock would then start over: The Senate would have one year for an up-or-down vote. If the nominee loses the confirmation vote, then they would be required to leave the bench by the end of the president's second term (or earlier if the president wishes to nominate someone else).