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Dick Durbin: Let my nominees go!

durbinholds.JPG

The Senate confirmation process has bogged down. Sometimes, the delay is public, as when Richard Shelby placed a hold on all nominees. Sometimes, the delay is opaque, as in the case of secret holds. But the outcome has been a dysfunctional process where 100 executive branch nominees have now cleared their committees but are awaiting confirmation. At this point in George W. Bush's presidency, there were 20 nominees awaiting confirmation. Earlier today, I spoke with Majority Whip Dick Durbin about the issue. A lightly edited transcript follows.

Congratulations are in order. The Senate is about to pass 100 stalled nominations. That's quite a milestone.

Yes, I'm afraid that's so. We're at 96 or 97 or so.

How does this work? What is stopping the Democrats from simply bringing these nominees up for a vote?

Under the ordinary course of things, with the exception of controversial nominees, the nominees would be packaged and moved through in groups. The really controversial ones get their own vote on the floor. But with the Republicans being unwilling to move them through, they stack up on the calendar. So each one has to be like a bill. That means you have to move to proceed, which is a debatable motion, which means you need to file cloture, which means waiting two days for the cloture vote, and then 30 hours after the cloture vote, to move the nomination. And you'd have to do that with each one.

You say the Republicans, but a lot of these nominees actually attract substantial Republican support when they're on the floor. Lael Brainard, the long-delayed undersecretary of the Treasury for international affairs, got 72 votes. Isn't a lot of this just individual senators holding up the process in order to gain leverage on other issues?

I'm just going to go out on a limb and say it is an organized party strategy. It's not one nominee or even a handful. It's almost 100 on the calendar. George W. Bush was at 20 at this point in his presidency. And these are nominees who have already cleared a committee vote, often unanimously. The subplot is that Republicans think if they hold up the nominees they're stacking up bargaining chips and they're hurting Barack Obama.

How does it hurt Obama?

It stops him because he can't fill his government with the nominees he needs or fill the vacancies on the bench that he is supposed to fill.

So the idea is that blocking these nominees makes government work poorly and then the Republicans can run against this poorly functioning government?

That's it.

And many of these holds are secret. How does that even work? Let's say you want to put a secret hold on someone. Who do you talk to?

The only person who knows if I have a secret hold on someone is one staff member in the cloakroom. The only way you can figure it out is the process of elimination. You try to figure out who are the most likely Republicans to have placed the hold and you ask them. And some will deny it. And eventually, you're down to two or three and you try to figure it out. Now, we thought we changed it in the first bill we passed in this Congress. But they're ignoring it.

How can senators ignore a rule change they voted for?

It is a rule, but it doesn't carry any time in prison. We thought once we established it they would agree to live by it. But only Tom Coburn has done that.

So then what do you do? It seems like there are two problems. First, that the Senate considers so many nominees. And second, that it's so easy to impede the Senate's business.

At this point, any change in the rules would require at least 60 or 67 votes at a time when you have 59 Democrats. Bringing one Republican or even eight Republicans over to a rules change is difficult. What we hope is that when the public understands that Republicans are using and defending secret holds, their outrage will end the practice.

Photo credit: AP Photo/Manuel Balce Ceneta.

By Ezra Klein  |  May 6, 2010; 4:47 PM ET
Categories:  Interviews  
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Comments

" Now, we thought we changed it in the first bill we passed in this Congress. But they're ignoring it.

How can senators ignore a rule change they voted for?

It is a rule, but it doesn't carry any time in prison. We thought once we established it they would agree to live by it."

Whaaaaa?!? Ezra could you please explain that? And who is keeping this secret? Why is the leadership bound by it?

Posted by: bswainbank | May 6, 2010 5:23 PM | Report abuse

I have no idea why Obama doesn't just do mass recess appointments.

Posted by: bswainbank | May 6, 2010 5:27 PM | Report abuse

Mr. K, were you planning on interviewing someone in the Republican leadership to get an opposing view?

Sen. Durbin has predictably pointed the finger at the political opposition. If the GOP Senate leadership does the same, this is just one more partisan gridlock story. But if there is something more to it, then I'm willing to give it serious consideration.

As it currently stands, it's either half of a boring column or half of something interesting. Either way, it's still only half.

Disclosure: I voted for Senator Durbin. I like him.

Posted by: MsJS | May 6, 2010 5:29 PM | Report abuse

Senator Durbin says, "What we hope is that when the public understands that Republicans are using and defending secret holds, their outrage will end the practice."

OK. I'm a Democrat, and I'm outraged. And I agree with Senator Durbin's analysis that this is an organized Republican Party attempt to weaken government and then blame Obama.

That said, I'm sick of Democrats letting -- yes, letting - Republicans get away with stuff like this. To be frank, it makes me question their motives as well.

Fact: Several years ago, when Democrats deined to hold up even a dozen or so Republican judgeship nominations (over legitimate substantive concerns, I might add), the Republican leadership threated what came to be called "the nuclear option" (ingenuously or not) -- and Democrats caved. Yeah, the "gang of however many" played a part in quelling the immediate controversy, but over the ensuing several years it was basically voluntary cooperation on the part of Democrats, and not some gang, that enabled the Senate to function.

Democrats play by different rules than Republicans when they are in the Senate minorithy. But why?

The common wisdom is that Democrats are better players (heck, we're better people!), but when the operation of government is at issue and Democrats have an escape hatch (truthfuly, they have more than one, in the form of multiple filibuster reform options), I for one have to question whether they really are the victims or whether Senator Durbin and other Democrats aren't just trying to generate outrage ... to generation donations and votes.

Posted by: paul65 | May 6, 2010 5:30 PM | Report abuse

The public (voters who only follow politics casually) don't know about, don't care about, and won't do anything about issues like this. The only solution is for the Democrats to pass a rules change eliminating holds and the filibuster at the beginning of the next Congress -- assuming they still have a majority. Make it so.

Posted by: redwards95 | May 6, 2010 6:18 PM | Report abuse

So doesn't the staff member have to obey the rules?

Shouldn't he be fired if he doesn't?

Posted by: pj_camp | May 6, 2010 7:35 PM | Report abuse

"What we hope is that when the public understands that Republicans are using and defending secret holds, their outrage will end the practice."

I'm not sure that seems to be the case. In fact, it seems like the opposite might end up being true.

@MsJS: "Sen. Durbin has predictably pointed the finger at the political opposition."

Well, I'd never vote for Senator Durbin, and there's been plenty of things he's said (and voted for) that I'd take exception to, but given the circumstances, I'm not sure what the other side to this would be. He seems to be just making an honest assessment of the problem.

In any case, I wouldn't expect either side to say that since the Democrats held up more of Bush's nominees than the Republicans did of Clintons, they decided to without 5 times as many of Obama's as the Democrats did of Bush's in a constant game of political one-upsmanship. Which is sorta what I think is going on.

Many of these positions are ones where there is not a lot of long term political advantage in holding them up, and some very practical problems for future governing, should the minority become the majority sometime in the future.

And, yes, I'm wondering why the Democrats are contemplating a nuclear option. I suppose some of them could like the lack of accountability. "What can we do? It's those wascally Republicans."

In any case, I think the Republicans are setting themselves up to fail, should they have the opportunity to govern in the future. What do they think the Democrats are going to do, when they are in the minority? Let bygones be bygones? Doubtful.

Posted by: Kevin_Willis | May 6, 2010 10:26 PM | Report abuse

"What we hope is that when the public understands that Republicans are using and defending secret holds, their outrage will end the practice."

Wow, that's a brilliant strategy there. Hey, you know what...beyond that strategy being fundamentally stupid (the GOP has no shame), but even if it wasn't the Dems would have to actually get that message out - which they have been failing at for a year now. Maybe if they could get their stuff together and actually flood the airwaves with a coherent message on ANYTHING, I'd think this might have a chance of working.

@Ezra:

I'm assuming that you had a limit on the number of questions you were allowed to ask...but can you get a follow up on the "changing the rules question"? I know it would take 60 or 67 members RIGHT NOW, but he said nothing about the start of the new Congress and the ability to change the filibuster rule with only 50 votes (and Biden).

It was really a cop-out that he didn't even mention that as a possibility, and he should have commented on it.

Posted by: TheBBQChickenMadness | May 6, 2010 11:06 PM | Report abuse

As I understand it, the 'hold' is essentially an offshoot of the filibuster.

Again, as I understand it, the reason why the majority leader will ask for unanimous consent for something noncontroversial (e.g. to move a vote on a nominee) is that unanimous consent means nobody's filibustering.

But the absence of unanimous consent means that whoever's withholding it is implicitly threatening a filibuster, which, per Sen. Durbin, means "you have to move to proceed, which is a debatable motion, which means you need to file cloture, which means waiting two days for the cloture vote, and then 30 hours after the cloture vote, to move the nomination."

A 'hold', again as I understand it, is simply advance notice that you intend to make the Senate jump through these hoops on a nominee. It works equally well whether the name of the senatorial monkeywrencher is known or not, just so long as there's no doubt that the monkeywrencher exists. And I don't see how a rule can change that.

I'm open to correction, so if I've got this wrong, please say so in this space.

In order to fix 'holds', you'd have to properly amend the Senate rules. Getting rid of the time lags around cloture would effectively end the 'hold' - you could change the rules so that a cloture motion 'ripens' in 48 hours of real time, regardless of what's going on on the Senate floor, and you could just give each side one hour of floor time to sum up its case after a cloture motion passes.

Then the whole process would effectively take about an hour and a half of floor time per nominee: 15 minutes for each vote, and 1 hour while a minority of a minority made asses of themselves.

Posted by: rt42 | May 7, 2010 5:39 AM | Report abuse

> In order to fix 'holds', you'd have to
> properly amend the Senate rules. Getting
> rid of the time lags around cloture would
> effectively end the 'hold' - you could
> change the rules so that a cloture motion
> 'ripens' in 48 hours of real time,
> regardless of what's going on on the
> Senate floor, and you could just give each
> side one hour of floor time to sum up its
> case after a cloture motion passes.

Quite honestly, no. All that has to happen is for 52 Democratic Senators to walk into the Senate chamber, one of them to say "we move SB12345" or "we move nominee Dewey Cheatem", vote on it, and send the results to the President. Absolutely none of this "Senate rules" garbage appears in the Constitution, whereas the rule of simple majority in the Senate DOES appear therein (unless you believe the President Pro Tem is the 61st vote...).

sPh

Posted by: sphealey | May 7, 2010 7:27 AM | Report abuse

Why can't the Democrats ignore those Senators who ignore the rules? Also, why don't these guys toss out all these nonsensical rules at the beginning of a Congress when they only require 51 votes instead of carrying them through all the time?

Stupid rule #1: unlimited debate

Posted by: bcbulger | May 7, 2010 10:42 AM | Report abuse

sphealey: "Absolutely none of this "Senate rules" garbage appears in the Constitution"

It sure does. Article I, Section 5: "Each House may determine the rules of its proceedings..."

bcbulger: "why don't these guys toss out all these nonsensical rules at the beginning of a Congress when they only require 51 votes instead of carrying them through all the time?"

That the majority is especially empowered to rewrite the rules at the beginning of a Congress is a theory and nothing more.

It's a fairly decent theory, in my opinion: the idea is that, at the beginning of a Congress, the new Senate hasn't yet implicitly consented to the rules from the previous Congress through their adherence to those rules.

Once they've given that implicit consent, the theory goes, they've got to follow them all, including the one that requires a 2/3 vote for cloture on any rules change.

This theory is not the only currently accepted theory; in fact, it's a bit of an upstart. The operative theory is still that since the Senate is a continuing body, its rules continue as they are until they're amended under the process set forth under the rules.

But whether at the beginning of a Congress or at any other time, what it'll actually *take* to change the rules in a manner that's not consistent with the 'continuing body' theory is the votes of 50 Senators, plus the willingness of the President of the Senate to overrule the Senate Parliamentarian who buys into the 'continuing body' theory and will say you still need a 2/3 vote to change the rules.

So the time to change the rules is when the Senate Dems have 50 votes for doing so, and the willingness of Biden to back them up.

Posted by: rt42 | May 7, 2010 11:28 AM | Report abuse

Recess appointments. I have no clue why they're not being used all over the place.

Posted by: jeffwacker | May 9, 2010 3:08 PM | Report abuse

Fires are like Politics in that when the fire is at it's hottest,Democrats need to do a back burn.
Fight fire with fire, thats the only way to cool the enviroment. Stop seeking bipartanship and do what is right !

Posted by: wave06 | May 10, 2010 2:14 PM | Report abuse

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