Yesterday, Craig Becker — a union-side labor lawyer, thought by Richard Epstein, his conservative colleague at the University of Chicago, to be one of the finest attorneys in the country — lost his nomination fight for a position on the National Labor Relations Board (NLRB) by a vote of 52-33. Yes, Becker won by 19 votes, but he lost because in the western world, only in the United States Senate is a victory of 19 votes and an absolute majority insufficient to actually “win” a vote. Indeed, the Senate has gone so far thru the looking glass that Sen. Orrin Hatch of Utah said that “I sincerely hope the White House does not circumvent the will of the Senate by appointing [Becker] when the Senate is out of session,” Yes, the “will of the Senate” expressed by the 33 “no” votes in opposition to Becker. Becker’s nomination was “held” by John McCain — an archaic tradition more suited to an Elk’s Club in Elmira than the World’s Greatest Deliberative Body — by which any member of either party can hold a bill or nomination, and then threaten a filibuster. In short, one member can decide for a body of 100 whether a nomination may, first, be considered at all, and, then, after delays frequently lasting months, whether the simple majority that is the hallmark of democratic government (the exceptions for which are clearly spelled out in the Constitution) can obtain.
Right now the NLRB has only two commissioners serving out of its mandated total of five — it’s not even clear if their decisions for the last two years are constitutional (The Court will hear the case). All three nominees to fill the Board were tied to Becker, including the Republican selection, Mike Enzi’s HELP staffer, Brian Hayes. (Enzi was supposed to vote for Becker in return for Hayes being put on the Board — but after first voting for Becker in committee, Enzi double crossed the White House and voted against Becker anyway. Classy….).
You might say the Republicans thus “spared the nation” three years of Craig Becker — but dozens of zealous company-side labor lawyers have been appointed to the NLRB and the Republic has survived. A majority party is entitled to promulgate its program with — within broad limits — the people it selects. The opposition party should oppose — but it should not thwart the majority party’s program or the personnel it has chosen to run its government. If it does, there is no democratic accountability, i.e. the electorate cannot actually evaluate the program of the party it elected. It can only blame it for failing to implement that program — and this for anachronistic procedural reasons Judging an actual political program and blaming the governing party for the “gridlock in Washington” are not the same thing.
While eliminating the de facto supermajority for substantive legislation is peculiarly controversial, (would anyone have invented this practice if it didn’t already exist — what problem would it have suggested it solved? Or do we cling to the filibuster because of the “legitimate” ends with which it was used in the storied history of the Senate i.e. as a bulwark of the apartheid South? Yes, those were the good old days….) holds would be hard for anyone to defend in a nation which prides itself on its efficiency and productivity. Imagine suggesting to the CEO’s of UPS or FedEx that they give their line managers the right to exercise unilateral “holds” on company personnel and policies that they, you know, just don’t like (and maybe they’ll rescind the holds if their divisions receive larger budgets) — yet this is exactly the way our vaunted temple of democracy, the Senate, runs.
There is no reason that presidential appointments of either party should require a supermajority or suffer through delays of any sort — such delays make the operations of the government difficult, and leave it without crucial personnel in critical areas. Indeed, presidential appointments should be rejected only for the most egregious personal or professional failings. And, yes, that includes controversial Republican appointments like John Ashcroft and John Bolton, too. Russell Feingold took a lot of flak from the Left because he supported Ashcroft’s nomination as Attorney General. I was one of the people who disagreed with him. But Feingold was right, and I was wrong. Ashcroft is a Confederate sympathizer — not an ideological soul mate of either Feingold or myself. But Feingold affirmed Ashcroft — something different than endorsing him exactly — on the procedurally neutral ground that presidents should be given the widest latitude in selecting those they wish to serve the country during their administrations. Ideological disagreement is an insufficient reason to reject an otherwise qualified presidential appointment — or even to delay a nomination for months and thus render government inoperable. And obviously a shakedown — holding a nominee hostage in return for a pork barrel project, as we’ve seen recently from Senators Bond and Shelby — is both contemptible and risible. A president of either party is entitled to hire the staff — which, by definition, is temporary — of his choice that will fill the executive branch, and, by allowing that to happen, the Senate merely permits the American government to function at all.
So regarding FrumForum’s recent symposium on centrism: You want centrism? How about starting with some procedural sanity — no holds/no filibusters. Up or down majority votes in an expeditious fashion on presidential appointees, regardless of party or ideology. Majority votes on bills sent to our already anti-democratic second legislative body. How about if the damn Senate actually functions as if it’s a governing entity of a proud and great nation, rather than a holding pen for elderly mediocrities and drama queens?