More action on nominations, please

By Jonathan Bernstein

Yesterday I watched Richard Durbin, the Democratic whip, spend some time on the floor of the Senate complaining again about Republican obstruction on the subject of nominations. Durbin said that there are some 107 nominees who have cleared committee, most of them having been supported overwhelmingly or even unanimously in committee, who can't get to the Senate floor for confirmation. He pointed out, as he has numerous times, the pattern in which nominations are delayed for weeks, even months, only to pass by lopsided margins (or by voice votes) once they are finally cleared.

Well, he's right about that as far as it goes . . . but then the next thing he did was to get the recess resolution cleared, so that the Senate can go home for a week. No!

Have you ever played a game with both formal and informal rules? And have you ever been in a position in which someone, perhaps a new player, gained an advantage by exploiting something allowed under the formal rules but that just isn't done? That's what's happening in the Senate right now with nominations. Oh, sure: Some of the delay is because of real GOP objection to some of those 107-odd choices. But most of it is clearly because Republicans have found a loophole in the rules and are exploiting it; they're placing holds, and running out the clock.

There's no reason that Durbin, Harry Reid, President Obama and the Democrats have to put up with it. On the one hand, Reid can just stop honoring holds. Yes, it would take floor time, but he could file cloture and start the clock running -- and threaten to keep the Senate in weekends and holidays, if necessary. He could also be more aggressive about finding his own loopholes to exploit to counter the GOP tactics.

Along with that, Obama could be more forceful about using recess appointments for executive branch nominees -- not just to put people in office, but to make it clear to Republicans that whatever the merits of the 60-vote Senate, Democrats are not going to play along with a 70-, 80-, 90- or 100-vote Senate.

Add to that a lot less vetting on executive branch nominees by both the administration and by Senate committees, and there's really a lot that the Democrats could do to fill positions quicker. It's a fair complaint that Republicans are blocking nominations once they are ready for the Senate floor, but that doesn't explain why no one has been nominated for more than half the current judicial openings, or why it takes so long and is so unpleasant to get from nomination to committee approval. It's hard to complain about Republicans exploiting the rules when Democrats in the Senate and in the administration -- including the president himself -- are doing little to fight about beyond giving a few whiny speeches to an empty Senate floor.

Indeed, I suspect a lot of the Republican opposition is basically just bluff. No one is raising money or securing their base against a primary challenge by blocking district judges and mid-level executive branch nominees whom no one has heard of. Sure, they're going to fight over nomination at the Appeals Court level, and anyone who gets targeted by Glenn Beck or Rush Limbaugh, and on those controversial nominations it's a question of having the votes, but the rest? I suspect they're doing it because no one has bothered to fight back. That should end. This in an important part of governing the country, and the president and Democrats in the Senate should stop complaining and start taking action.

Jonathan Bernstein blogs about American politics, political institutions, and democracy at A Plain Blog About Politics, and you can follow him on Twitter here.