Senate Should Give Obama’s Nominees the Green Light

February 12th, 2010 at 1:21 am | 15 Comments |

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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?

Recent Posts by Eugene Debs

15 Comments so far ↓

  • joemarier

    It is rather inconvenients that the “centrists,” Feingold excepted, are the ones most in favor of keeping the filibuster (see Fourteen, Gang Of). There are never more than 2o or 30 votes in favor of just ending the thing, I think. The left-most senators want to end it in Democratic presidencies, the right-most senators want to end it in Republican presidents, and around and around we go.

  • sinz54

    Mr. Debs: 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.
    1. How exactly can you oppose the majority party’s program without also trying to thwart it? Just criticizing the majority party’s program in public with intent to sway the electorate is a form of trying to thwart the program.

    2. Mr. Debs, did you also believe that Dems should not have tried to thwart Miguel Estrada’s nomination? How about all those judicial appointments made by Bush that Dems fiercely opposed?

    3. Would you tell Dems to get out of the way of a judicial appointment who believed that Roe v. Wade should be overturned?

    Even jaded political reporters are noticing that all these calls coming from Dems for filibusters and other parliamentary maneuvers to end, only occurred after Dems took power. When Repubs were in power, the Dems did what they could to block GOP appointments they didn’t like.

    So stop with the hypocrisy already, OK? You Dems are not fooling anybody.

  • oldgal

    One of the first things I always taught my staff was that just because you can doesn’t mean you should. Someone needs to teach this to the senate.

  • debs

    There’s no hypocrisy at all here. I’ve been opposed to the filibuster my entire adult life–it’s absurd and anachronistic. We don’t need a supermajority requirement in a bicameral legislative system, especially when the Senate is already an anti-democratic body where the state of Vermont has as many representatives as does the state of California. There is no requirement in the constitution for routine resort to a supermajority for Senate votes–the fact that the Constitution specifically stipulates only extraordinary use of the supermajority, e.g. impeachment, ratifying treaties, implies that the founders intended a simple majority vote for everything else. When Tom Harkin first discussed radically reforming the filibuster in 1994 (when the Democrats were in the majority in the Senate!!!!!! So Harkin has always been a proceduralist about this, too), I attended a meeting to discuss that unlikely possibility. You’re projecting your own bad faith onto me. I support Ezra Klein’s proposal that you reach a bipartisan agreement to change the filibuster rule in six or eight years, i.e. meaning at a point where nobody would know who would control the Senate and the White House, and thus nobody could be sure who would benefit first. So how about it Sinz: Do you support that? Liberals are proceduralists–pity conservatives no longer are.

    As for opposition, you make your case rhetorically, and take it to the ballot box at the next election, criticizing the program that the majority party has actually passed. It’s no great mystery–European governments (and Canada) too work like this. If you simply stop the program from happening, there is no accountability at all. And, of course, when your turn comes, your program will be stopped as well–nothing happens except increasing public cynicism. It’s nuts.

    As for judges, arguably there’s a stronger case for a supermajority requirement for them–federal judges have lifetime appointments. But, no, I’d throw the whole thing out. Most of the judges Bush selected were appalling, but best to eliminate the filibuster so that we can simply have a functioning.

  • balconesfault

    I think there is a huge difference between Executive Branch appointees and judicial appointments. As Mean Gene pointed out federal judges have jobs for life, and they deserve extra scrutiny.

    But when a significant percentage of the Senate has the feeling that a certain appointee will act contrary to the will of Senate legislation – say, an EPA head who expresses the opinion that enforcing environmental statutes is harmful to the business community, or a Secretary of Health, Education and Welfare who has expressed her desire to water down all the “workfare” requirements put in place under Clinton – I think that filibuster is an appropriate tool to prevent functional Executive branch reversals of existing law just because of a slight shift in the balance of power in Congress.

  • debs

    Yeah, I used to think that Balconesfault–but the problem is the duly elected president, not the administrator he has asked to execute his policy. If you reject one extremist nominee, the president will just nominate another one–it’s the ideology of the president these people are expressing, after all. And, thus, the president is entitled to people his administration with those who will agree with his world view. If we don’t like that world view, we should elect a different president, next time around anyway.

  • sinz54

    Debs: I support Ezra Klein’s proposal that you reach a bipartisan agreement to change the filibuster rule in six or eight years, i.e. meaning at a point where nobody would know who would control the Senate and the White House, and thus nobody could be sure who would benefit first. So how about it Sinz: Do you support that?
    YES, I would support reform of the filibuster in 8 years–but NOT its total abolition.

    The good thing about the current Senate rules is that they allow for much more debate on an issue than the House does. That enables the Senate to act as a brake on the passions of the House and Executive Branch, which might help prevent Congress from being stampeded into passing bad legislation or getting questionable nominees approved under “the fierce urgency of now”.

    Harkin’s compromise proposal was that you would still need 60 votes for cloture. But a week later, if debate hadn’t ended, you would need only 57 votes for cloture. And a week later, 55. And so on, till within a month or two, only a majority would be needed.

    That’s still too fast for me.

    Let’s lengthen it as follows:

    Initially: 60 votes for cloture
    Four weeks later: 57 votes for cloture
    Four weeks after that: 55 votes for cloture
    Four weeks after that: 53 votes for cloture
    Four weeks after that: 51 votes for cloture (simple majority)

    That gives the minority opposition party well over 3 months to make their case. I really think that’s generous and fair.

    Our Founding Fathers didn’t want 100% democracy. They feared it would turn into mob rule. The Senate was intended as one of the insulators against mob rule, perhaps led by a “man on a white horse.” Originally, Senators weren’t even chosen by direct election, but rather by the various state legislatures.

    Given what we’ve seen of Huey Long, Ross Perot, Barack Obama, and Sarah Palin, our Founding Fathers knew what they were talking about.

  • joemarier

    Interesting ideas, but I’m not sure there’s a constituency in the Senate for increasing the House of Representatives’ power over them.

  • balconesfault

    I say that we just amend Senate rules so that in order to maintain a filibuster, the opposition must maintain on the floor of the Senate at all times enough people to block a cloture vote.

    Right now, as I understand them, the rules are heavily slanted towards the filibustering group … who only has to have one person on the floor to keep talking to keep the filibuster alive, and the majority has to keep 50 Senators on the floor to force someone to remain at the podium. Let’s make this a little more painful for all involved, and require at least one full day of floor discussion with a full filibuster contingent on hand before a cloture vote can be called for.

    If the filbuster starts being a massive pain in the ass for all involved, and starts looking like it’s completely freezing up Congress from being able to work, I suspect it would become less popular among the people who are actually paying the Senate’s salaries.

  • rlynn


  • LFC

    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.

    Well judging from their budget numbers while they were in power, and their fictional figures since Obama has come to power, it appears that Senate Republicans ain’t too good at math.

  • LFC

    sinz54 said… How about all those judicial appointments made by Bush that Dems fiercely opposed?

    rlynn said… BORK!

    Funny, not a word from the apologists about the unprecedented (and unrepeated, even by the Dem minority that followed) blocking of 167 Clinton judicial nominees. The Dems blocked 10 of the most extreme nominees, people who often expressed positions that were not consistent with actual current law. That’s a pretty good reason to block. I would have supported blocking Scalia and Thomas on those grounds, as their extremist minority votes have shown that they are willing to overturn settled case law if it doesn’t fit with their preconceived notions or what they THINK the original authors of the Constitution might have been thinking (i.e. a lame-assed way to justify their preconceived notions).

    As to Bork, he argued in 1971 that free speech only covered political speech, a highly controversial position. He also argued that equal protection clause only applied to discrimination based upon race, and not to gender. He backtracked on those positions in his testimony, but had his cage rattled because of judicial viewpoints that were viewed as both extreme and legally wrong.

    Compare Bork to the roasting of Sotomayor, who had a huge judicial record to cull through. What did the GOP latch on to? A quote about a “wise Latina woman” given in a personal speech, and slamming her about a reverse discrimination case that she did not actually hear (she heard a very narrow point on that case) … effectively slamming her for not being an activist judge.

  • debs

    Sinz, your on the right track, but three months for delay for every major bill is still way too long. We have numerous choke points in American governance. Bicameralism itself is a chokepoint–many nations do just fine with just one legislative body. Others, like the UK and Canada, have made their upper chamber essentially a ceremonial institution. Then we have numerous committees in both bodies that further slow things down, often for no good reason. We then have conferences between the bodies–without which the health care bill would already be passed. Finally, we have a presidential veto.

    Moreover, the Senate, designed to cool the democratic fevers of the House, does so in its design, i.e. by being an inherently undemocratic chamber. Bernie Sanders socialist rants from a state of a few hundred thousand have precisely the same influence–one vote–as does the calm conservative drawl of John Cornyn, representing tens of millions of Texans. And the Constitution implicitly assumed that most business before the Senate would be settled by a majority vote–we know this because it clearly outlined the exceptions, including impeachment, overriding a presidential veto, expelling a member of the body, and ratifying treaties. There would have been no reason to note these rare instances which required a 2/3rd vote of the body if the founders did not wish it understood that the regular business would merely require a majority vote.

    So: No, we don’t need on top of all of this a de facto supermajority requirement which, in the past, is famous merely for delaying political and juridical rights to African Americans. We don’t use supermajorities at the city council level. Scott Brown didn’t need 60% of the vote to win his Senate seat from Massachusetts, nor did any other Senator. So why does the Senate need a 60% threshold when a bill already must receive passage in an entirely separate legislative body, one more representative of the democratic will? Yes, we used to pick senators via state legislature–but we haven’t for almost 100 years. And just around that time, the Brits with the Parliament Act eviscerated the House of Lords. Perhaps its time we entered the 20th century of democratic governance–leave aside the 21st–by following the simple, but universally understood democratic principle: majority rules.

  • sinz54

    Debs: Sinz, your on the right track, but three months for delay for every major bill is still way too long….the Senate, designed to cool the democratic fevers of the House, does so in its design, i.e. by being an inherently undemocratic chamber.

    In this decade, we have seen two major cases where the Senate was easily stampeded.

    The first was right after 9-11, when the flawed PATRIOT Act was rammed through Congress just one month later: al-Qaeda is attacking us! To stop them, we gotta find out what folks are reading in public libraries!

    The second was right after the financial crisis hit, when Bush and Paulson told Congress that they had to pass TARP in just two weeks (!!!) or else the U.S. economy would collapse. Congress did pass it, just a few weeks later.

    That shows that the Senate can move VERY fast (perhaps too fast, some Americans would say about these two pieces of legislation), when war fever hits or an imminent economic crisis erupts. It wasn’t paralyzed or gridlocked then, was it?

    But when we’re talking about legislation that isn’t for an imminent catastrophe like war or financial collapse but has the capability to fundamentally change American society–as health care reform would do or cap-and-trade would do–then we should take the time to think,to do research, to debate, to think some more, to debate some more.

    As a conservative, that’s how I think such things should be done: SLOWLY and CAREFULLY. With all necessary attention paid to the consequences, bad as well as good, of such changes.

  • sinz54


    The reason I suggested 3-4 months for Senate debate (after which a simple majority rule would suffice) is I want opponents of bills or Presidential nominees to have sufficient time to make their case to the American public. A major purpose of Senate debate is to inform and impress the voters back home. With today’s Internet, cable, and satellite technology, the public should be pretty informed after a few months time.

    How do I know? Because just a few months after Congress started debate on the health care reform bill, the pushback from the American people had begun in earnest. You saw Tea Party protests and furious responses from Americans at “town hall” meetings with their elected officials.

    If the health care reform bill (or Bush’s privatizing of Social Security) had been rammed through Congress in a month the way the PATRIOT Act and TARP had been, the American people wouldn’t have learned what was in it until after it had passed–and then it would be too late. We’ve had a lot of second thoughts about PATRIOT and TARP–but it’s harder to repeal even pieces of this legislation after it’s already gone into effect.