My friend and former colleague Steven Taylor offers what he terms “An Extremely Modest Proposal in Regards to the Senate.” Rather than filibusters and holds,
How about if a Senator has a reason to object to a given nominee that said Senator would, oh I don’t know, maybe take the floor and try to, well, persuade the other Senators that the nominee is, well, not worthy of the job. If one’s argument and evidence is powerful enough, perhaps one could actually form a majority contra the nominee.
If one’s preference is for democracy and efficiency over obstructionism and petty partisanship, Steven’s proposal has a certain appeal. If your inclination is for very limited governance and extreme deference to the rights of the minority, not so much.
My longstanding position — likely developed during the Clinton administration but maintained through the Republican administration of George W. Bush and the return of Democratic governance under Barack Obama — has been that the filibuster and similar extra-constitutional supermajority requirements should be reserved for truly game-changing legislation.
Presidents should get extreme deference on nominations for executive office and other non-lifetime appointments because the Senate’s role is merely supervisory — to ensure that those chosen are qualified to serve. For judgeships and other lifetime or very-long-term appointments (say, the FBI Director) Senators should take a more active role but, at the end of the day, the nominees should get an up-or-down straight majority vote. (Although I’m fine with the informal ability of Senators from a state that a federal district or appeals court judge would have jurisdiction over to have an effective veto, since it’s in keeping with the Senate’s historical role as representing states, not just people.)
As a practical matter, though, it’s nearly impossible to enforce these rules. Once a precedent of politicizing a nomination is established, it naturally gets cited the next time the partisan shoe is on the other foot. And the arguments of conservative Republicans as to unfitness would have to be extraordinarily good, indeed, to sway enough of the 59 Democratic Senators to vote against the nominee of a Democratic president.
The modern era of party discipline is such that we may be past the time where persuasion is even possible.
