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Posted at 10:04 AM ET, 12/29/2010

A possible deal on nominations reform

By Jonathan Bernstein

Ezra Klein believes that Democrats and Republicans may be able to cut a deal on Senate rules about nominations; it seems that Mike Lee, incoming GOP senator from Utah, currently holds the 2005 GOP position that judicial nominations should not be subject to the filibuster.

I think it's highly unlikely that such a deal could be made.  As long as there's a non-zero chance that Barack Obama might be nominating a Supreme Court justice in the future, especially one to replace one of the current conservative justices, I can't imagine that there's any possibility that GOP-aligned interest groups who care about abortion would be willing to support a 50-vote Senate on nominations.  And senators are rarely willing to cross core groups within their party's coalition.

But I do think it would be a good idea to reform nominations.  I'm agnostic about supermajorities for judicial nominations; on the one hand, as Klein points out, the effects of a single nomination (at least to the supremes) can be essentially enormous and long-lasting, which suggests that it's somewhat unfair for a small, transitory majority to get such a large reward.  On the other hand, well, 60 is entirely arbitrary, and the more partisan the Senate becomes, the better the chances for a complete train wreck, with a minority party simply refusing to confirm anyone.  And realistically, it's going to be hard to gather the votes to lower the number on judicial nominations, so reformers might want to turn to reforms that can earn the widest possible support.

So what kind of deal should Democrats pursue?  On judicial nominations, I believe holds by single senators make no sense.  While of course a senator can use a hold on anything to bargain for something else, the core reason to respect holds is that it gives opposition senators an opportunity to work out a deal.  That's possible with legislation, but not really, at least not directly, when it comes to judges.  And yet in the 111th Congress, holds against nominees who apparently had little real opposition were quite common.

On executive branch nominations, I think the situation is different.  There, single-senator holds make sense, because individual senators can use a hold to negotiate over agency policies.  For better or worse, that's a power that senators are unlikely to want to give up, and I, for one, think it's okay; at any rate, Senate reform shouldn't be about shifting influence away from the Senate.  The case for a supermajority requirement on executive branch appointments, however, is very weak.  Senators should have a chance to influence executive branch policy in the confirmation process, but presidents are entitled to the personnel they want to carry out those policies.   

So, on judicial nominations, I'd basically like to see the majority leader just announce that he won't automatically respect holds any more, along with expedited procedures, enforced by changes in Senate rules if necessary, that allow a quick cloture vote (if needed) and then vote on final passage.  On executive branch nominations, I'd like to see cloture set at a simple majority of Senators present and voting. 

I'm not sure any minority party at any point would be thrilled with anything that restricted their ability to filibuster, but Democrats do have some leverage here; they could threaten to enact even tougher reforms (such as lowering the number for cloture on judicial nominations) by majority vote.  And the Senate collectively does have an interest in making sure that executive branch nominations work, because otherwise presidents will try to shift responsibilities away from people who go through the confirmation process, and therefore beyond the reach of Senate influence. 

By Jonathan Bernstein  | December 29, 2010; 10:04 AM ET
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Next: The odd GOP compulsion to punish Democrats retroactively


Wow, deep in the weeds here for on the one hand, on the other hand arguments...

Posted by: shrink2 | December 29, 2010 10:41 AM | Report abuse

I have a pretty high I.Q., however, in reading this article I felt I was wallowing in some fairy land....kept thinking, "what's he saying, what's he saying?" That seems to be all Washington is about these days, double speak!!!

Posted by: bjk89 | December 29, 2010 11:01 AM | Report abuse

I've always agreed with an up-or-down vote on judicial nominees. Glad to hear more people warm up to that idea.

Posted by: clawrence12 | December 29, 2010 11:15 AM | Report abuse

What's wrong with a single up-or-down vote, majority rules, on everything? Or at least implement the magically vanishing filibuster--after each 24 hour period, it takes fewer and fewer votes to reach cloture, until majority rules. But I'd prefer the filibuster be dispensed with entirely.

Or, at the very lease, make them filibuster when they filibuster. That's something that I would think every side could agree on. I don't know of a single conservative commentator who thinks that senators should not be forced to actually filibuster in order to filibuster. Instead of filibustering and getting out early to make a late afternoon tee time.

Posted by: Kevin_Willis | December 29, 2010 11:34 AM | Report abuse

this column is so much better when sargent isn't writing it.

Posted by: docwhocuts | December 29, 2010 11:37 AM | Report abuse

I just can't get past the whining contained in this essay.

I honestly don't recall any discussion of rules changes from the Democrats when they were in the minority. I do recall that they were willing to use every "trick" available to them to achieve their goals.

While it is entirely possible that my memory isn't perfect, can someone point me to a statement made by a prominent Democrat, while that party was in the minority, demanding that the filibuster rules be changed?

Posted by: skipsailing28 | December 29, 2010 11:48 AM | Report abuse

There is a real crisis in the federal judiciary because of the vacancies that can't be filled because of holds and filibuisters. Even the conservative Justices have pleaded for more vacancies to be filled.

The no-brainer solution is to prevent single holds on ALL nominations to anything and prevent filibusters on nominations to the District Courts and Courts of Appeals, but leave it for the Supremes.

Posted by: Mimikatz | December 29, 2010 11:51 AM | Report abuse

Dear Skippy: The calls for filibuster reform all came from the GOP when they were in the MAJORITY. Remember the judicial crisis under Bush (way fewer stalled nominations than now, however) and the "nuclear option" to get rid of the filibuster then? Promoted by the GOP?

Thought not. How old are you really?

Posted by: Mimikatz | December 29, 2010 11:53 AM | Report abuse

dear mimi, thanks for the heaping helping of snot. it is something I've come to expect from the oh so self impressed left these days.

But honey, you didn't respond to my concern. I asked for a statement from a DEMOCRAT (you remember those doncha?) calling for the elimination of the fillibuster when the DEMOCRATS were in the minority.

My point is that the DEMOCRATS are whining now because the tools the used then are being used against them now. I'm simply offering snotty little cynics such as yourself an opportunity to prove me wrong.

So your response scored big on two measures of performance: it was snotty and it was pointless.

Thanks ever so much.

Have a nice day.

Posted by: skipsailing28 | December 29, 2010 11:58 AM | Report abuse

@skip: "dear mimi, thanks for the heaping helping of snot."

Ya know, just because Mimikatz feels it necessary to buttress her points with unnecessary condescension and insults doesn't mean you have to, as well.

That being said, I recall Senator Clinton making a elegant defense of the filibuster and it's historical importance--indeed, it's vital necessity as a check on unabridged executive power or some such thing.

Generally, politicians support the filibuster when it serves them, but then support filibuster reform when it no longer serves them. That's why such an antiquated and questionable method of political manipulation has remained with us.

I suggest we move from the filibuster to "sudden democracy". That is, voters across the country register to vote in "direct democracy". A secure online setup is created to allow voters to vote, via this "direct democracy". Some privacy is sacrificed, as you would have to consent to allow your vote to be texted or emailed back to you for verification (the best way to avoid voter fraud). But, the practical result is that registers voters are set up to vote directly on legislation.

Then, if the senate fails to hold a straight up or down vote on any legislation, it goes into "sudden democracy". Registered interested parties review the legislation and then vote, and it passes or fails based on this direct democratic vote, instead of being held up in perpetuity by self-important politicians.

Watch the senate start bringing everything up for a vote most promptly.

Posted by: Kevin_Willis | December 29, 2010 12:10 PM | Report abuse


Didn't the Senate Republicans, under Bill Frist, threaten to invoke "the nuclear opption", in order to defeat filibusters in the Senate?

I seem to recall that a group of 14 senators, seven from each side, got together, and agreed to oppose the nuclear option and oppose filibusters of judicial nominees, except in extraordinary circumstances.

Posted by: Liam-still | December 29, 2010 12:23 PM | Report abuse

A couple of things:

1. I'm fairly certain that Tom Harkin and Joe Lieberman (who was, at the time, a Democrat) have supported filibuster reform throughout the last decade. There are also prominent liberal bloggers (Yglesias, and IIRC Chait) who opposed the filibuster during 2001-2008.

2. It is simply not true that Dems "used every trick" available during 2001-2006. There have been two major spikes in filibuster use, in 1993 and 2009. Democrats during the Bush years did what Republicans did when Clinton was president, but not all that the GOP did in 2009-2010.

3. As far as whether the filibuster is worthwhile at all...basically, my feeling on it is that it's a consequence of the structure of the Senate that individual Senators want to retain as much influence as possible. Given the Senate, which we can't do anything about, we're likely to have some sort of outsized role for minorities.


Posted by: Jonathan Bernstein | December 29, 2010 12:24 PM | Report abuse

Sudden democracy made Socrates drink hemlock. The Senate protects the masses from the mob.

Posted by: shrink2 | December 29, 2010 12:37 PM | Report abuse

Even though it can be frustrating to see 60 votes required to get any legislation passed, and of course I would love to see progressive laws sail through, I am reluctant to see the 60 votes for cloture requirement, done away with.

New laws should not be passed easily, and overturned just as easily. If we start passing laws with just 51 Senate votes, and overturning them, just as easily, we will have the country in a never ended state of uncertainty; with laws being passed, and others being repealed, every time power shifts from one party to the other.

Cabinet and judicial nominations, should not be held up, by one Senator being able to put a hold on them, or on any business of the Senate, and a straight up or down vote is probably the best way to handle all nominations. After all; we do occasionally end up with a President, who got elected with less than 50% of the votes cast, so it makes no sense to then create a 60% of the Senate hurdle for all of his/her nominees to have to clear.

Posted by: Liam-still | December 29, 2010 12:39 PM | Report abuse

Yeah, Kevin. Perhaps I'll get lucky and mimi will include my posts in the troll eater thingie you gifted here.
In addition to which it makes me feel better momentarily. but yeah, it don't last.

Good use of the word buttress. Snazzy to say the least.

I like the idea of sudden democracy and I believe that we are not using our modern communications infrastructure enough.

for example it was suggested to me that we could raise money for the prisons by televising executions. In addition to a pay per view option, we could auction off the right to be the person who pushes the button that activates the electric chair.

Now mind you these suggestions came from the same person who also suggested that prison costs could be reduced by switching from an electric chair to electric bleachers.

That person is, small wonder, an ex wife.

Posted by: skipsailing28 | December 29, 2010 12:53 PM | Report abuse

liam, I was with you, but the GOP use of the filibuster is really nothing short of unprecedented abuse. Yeah, maybe whether its abuse is debatable. The unprecedented part is not.

As much as I'd like to have protection for the minority party, this current system is far too costly for the Republicans to filibuster everything that moves.

The problem is that the minority party has no incentive not to filibuster. Well, the incentive is that their filibustering is bad for the country.

Posted by: DDAWD | December 29, 2010 12:54 PM | Report abuse

Hawaii Governor Neil Abercrombie said Friday the "dark side" is responsible for accusations Barack Obama is not or should not be president because he was not born in the United States. As governor Abercrombie is optimistic he will be able to quiet at least some of the questions surrounding Obama's birth place.


Just open the file

The clear problem is that Obama's adoption to an Indonesian father may be recorded there

THAT would make Obama an Indonesian citizen - and his parents by the action of the adoption would have given up Obama's rights to US citizenship.

It is pretty clear.

If Obama did not re-apply to re-enter the US legally at that point, Obama would be an illegal alien.



Obama enrolled in Occidental College under the name Barry Soetoro - indicating that he took his father's name BY ADOPTION

At some point, Obama changed his name back, but there are no records of any Court issuing an order which would legally change Obama's name






Posted by: RainForestRising | December 29, 2010 1:09 PM | Report abuse

Hello Skippy and Kevin: My point was that the party in power usually wants to limit the filibuster, since it is used against them and they are the ones who have the power to make changes. The Dems were the ones whoi, in 1975, brought about the change that lowered the number of votes needed to cut off debate from 67 to 60. The GOP, when it was in the majority, wanted to use the "nuclear option" to end debate on judicial nominations. Now the Dems, still in the majority, want to limit the use of the filibuster, which has grown to unprecedented heights under the GOP) in the last 4 years, so that problems can be addressed.

When the Dems were in the minority and the "nucleart option" was under discussion I do remember Matt Yglesias anmd several Dem bloggers saying that we ought to get rid of the filibuster and that the Dems would regret not having done so when they returned to power. A few Dems were of the view it should be limited, but most Senators of both parties like their traditions because it gives so much power to0 each individual Senator. Unfortunately, it gives the most power to the ones who are most ruthless about using it.

Posted by: Mimikatz | December 29, 2010 1:35 PM | Report abuse

I'm not sure what anyone is even arguing about. It seems everyone agrees that both sides are hypocrites when it comes to filibuster reform. They support reform when they have a majority and suddenly discover a new found respect for the importance of filibusters when they are in the minority. Is anyone claiming otherwise?

Given that, let's move to a far more interesting and productive discussion about whether filibusters should be reformed rather than flinging the "hypocrite" label around endlessly in a circle.

I need to do more thinking about it, but I have the biggest problem with the single Senator holds. At the very least, those should be elminiated for judicial nominations and I would also think we should force Senators to actually filibuster.

Posted by: ashotinthedark | December 29, 2010 1:43 PM | Report abuse

so, mimi, is this an admission that the Democrats in the senate wanted to end the fillibuster when they are in the majority and retain it when they were in the minority?

There is much discussion about two seperate issues. One is the senate's process relative to nominees and the other is the fillibuster.

The problem I have with the former is that as the government grows in size and reach the impact of nominees becomes also grows. Counter to that is the notion that making the nomination process more difficult will just result in the more "czars" a la Mr Obama's regime.

Perhaps there is some middle ground on that one, but I still think that the Senate minority should be able to impact these appointments.

On the fillibuster in general I have no problem with the notion that the blocking party has the obligation to prove it has the votes to sustain the block. Further, rules changes that makes the process more onerous could be helpful.

but that said among my concerns is the issue of volatility. Without some dampening process we will face a situtation wherein the majority party enacts its agenda without restraint and when the majority changes the new folks spend a lot of time undoing the prior work.

We will see this in action with Obamacare. The congress will spend a lot of time seeking to undo this monstrosity. That time will come at the expense of other issues.

Posted by: skipsailing28 | December 29, 2010 1:55 PM | Report abuse

"...rather than flinging the "hypocrite" label around endlessly in a circle."

Oh sure, as if that choice were on the menu. Who do you think you are Barak Obama? So what should we do, find common ground of agreement in the center and then work outward? Our problem is the petulant children on the extremes of all political positions?

Our problem is that we enjoy calling each other hypocrites. The circle of blame is hard wired. I have been in enough quality improvement meetings to know this for a fact.

Posted by: shrink2 | December 29, 2010 2:13 PM | Report abuse

"We will see this in action with Obamacare. The congress will spend a lot of time seeking to undo this monstrosity. That time will come at the expense of other issues."


It's interesting you put it this way because the impression I had was that the Republicans were primarily interesting in slowing down the progress of other issues, so the attempt at undoing was more important than the actual undoing.

Posted by: lmsinca | December 29, 2010 2:15 PM | Report abuse

I believe that FAILURE TO ACT ACCORDING TO THE INTENT OF CONGRESS should be included as an Impeachable Offense

Clearly, on putting the death panels in effect AFTER Congress pulled those provisions OUT of the bill falls in there

Also, there are reports that Obama is now playing games with global warming regulations after Congress said NO

Obama does not make the laws in this nation, Congress does

Obama needs to be impeached - he is already out of hand in exceeding his authority.


Posted by: RainForestRising | December 29, 2010 2:16 PM | Report abuse

A single Senator is 1/100th of the elected Senate and shouldn't have the power singular to do anything. The Senate should bring all things to include nominations to a vote and the single Senator gets his elected power which is 1/100th of the votes.

We exalt Senators and give them power above the president when we allow them extraordinary powers as individuals. The way they influence legislation or agency rules is to belly up to the table of discussion and give meaningful input in exchange for their support. That is how the constitution intended the Senate to disburse power but we instead have all these people claiming to defend the constitution by giving one Senator more than 1/100th power in the Senate to make deals and chance that impact all of the people...

Each Senator is 1/100th of the Senate and should have power equal to 1/100th of the body called the Senate.

Posted by: soapm | December 29, 2010 2:47 PM | Report abuse

Interesting diary here at Daily Kos about various corporate and even foreign parties paying trolls to debase our political discourse and distract us from the constant predations corporations are making on our freedom. That may explain RFR.

OTOH, I actually agreed with much of Skip's last post, down to the part about Obamacare. The healthcare debate is another example of the Right claiming Obama is grabbing power to take away our freedom (by reforming Medicare, a government program) when the agenda is really to leave corporations free to take away our freedom by limiting choice and jacking up prices and denying claims and all the rest.

Posted by: Mimikatz | December 29, 2010 4:11 PM | Report abuse

RFR, you birther nutcase, read it and weep:

Not only has the Hawaii health director certified that Obama was born there, and is a natural-born citizen, and Obama posted his birth certificate on his Web site, House Resolution 593, of July 27, 2009, confirmed his birth by a vote of 378-0.

Try reading something besides partisan screeds.

Posted by: Pamsm | December 29, 2010 6:04 PM | Report abuse

Why bother?

All we have to do is wait till you go on fundraising breaks ... oh, sorry, you call them "home district visits" ... and appoint them anyway.

Problem solved.


Posted by: WillSeattle | December 29, 2010 7:53 PM | Report abuse

Pamsm, it was "certified" by someone who refuses to release to original documents and "confirmed" via a non-binding resolution celebrating Hawaii's statehood? Is CHRIS MATTHEWS partisan enough for you?

Posted by: clawrence12 | December 29, 2010 8:59 PM | Report abuse

Most legislative bodies don’t allow individual members, acting on their own without the concurrence of other members, to do squat. But the U.S. Senate nevertheless gives such powers to its members and even effectively requires a supermajority for adoption of legislation (even though the Constitution has no such supermajority vote requirement).

Reform of these decidedly undemocratic principles is long overdue. Indeed, in the not too distant past, filibusters were infrequent but when they did occur Senators were required to continue speaking on the floor of the Senate until the filibuster ended. This process has since morphed into a rule simply requiring 60 votes for adoption of any legislation.

Although Art. I, Sec. 5 of the Constitution does allow the Senate to “determine the Rules of its Proceedings” it doesn’t allow those rules to be inconsistent with the democratic principles upon which the Constitution is based by giving inordinate power to a minority group of Senators to influence and shape legislation by threatening a filibuster. Indeed, the constitutionality of the filibuster rule has been questioned by some constitutional scholars including Professors Catherine Fisk and Erwin Chemerinsky.

The Senate has for far too long allowed Senators to avoid taking difficult votes while receiving their more than ample salaries. It’s time that they start fulfilling their responsibilities to the electorate. And elimination or reform of the filibuster rule would be a step in the right direction.

Posted by: billeisen1 | December 29, 2010 9:38 PM | Report abuse

Erwin Chemerinsky is an ass.

Posted by: clawrence12 | December 29, 2010 10:49 PM | Report abuse

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