Sunday, July 14, 2013

Should Filibuster Reform Stop at Executive Nominees?

By Mike Dorf

Sen. Harry Reid currently plans to move the "nuclear option"--eliminating the filibuster by an ordinary majority vote--but only with respect to Senate confirmation votes for nominees to the excecutive branch.  Should this succeed, the filibuster will survive (for now) for legislation and for judicial nominees.  Is that a sensible line?

The conventional argument for distinguishing between executive branch nominations, on the one hand, and legislation and judicial nominations, on the other hand, is that the President is entitled to have his own team for carrying out policy through the executive branch, whereas Senators get an equal say in legislation and the staffing of the federal judiciary, a co-equal branch.  Other things being equal, getting rid of the filibuster makes it easier for the President to have his nominees confirmed.

That's the conventional wisdom but is it right?  I'm not so sure.

We might begin by asking why the Senate plays any role at all in confirming executive branch appointees.  Perhaps in the early Republic, Senators--as prominent statesmen--would have had access to valuable information on a substantial fraction of nominees, but in the modern world, Senate confirmation does not seem like a necessary check to ensure that appointees have the right qualifications and character.  The White House and the federal bureaucracy can vet plenty adequately without Senate help.  Perhaps the knowledge that there will be Senate confirmation hearings holds the President's feet to the fire with respect to professional qualifications, temperament, etc., but it's hard to believe that that is the chief function of Senate confirmation.  Certainly it's not the only function of Senate confirmation.

In particular, it strikes me that there is a substantial role for policy considerations in the process of confirming executive branch nominees.  Suppose a President nominates someone to head an agency even though his record indicates that he would likely be hostile to the policies established by Congress in statutes that the nominee, if confirmed, would be supposed to enforce:  E.g., President Reagan's successful nomination of James Watt as Secretary of the Interior.  Were Democrats who opposed Watt wrong to do so on the ground that the President was entitled to his own team?

A little reflection on this example leads me to think that the conventional wisdom needs to be amended to something more like the following: Within a range of reasonable disagreement about how to implement federal law, the President is entitled to his own team.  But once we say that this is the standard, then it's no longer clear that it is best implemented by a different rule from judicial nominees.

How much deference should Senators give to the President in considering judicial nominees?  I think the answer has to be "some."  If the answer is "none," then whenever the party with a majority in the Senate differs from the President's party, the President will either have to nominate judges who satisfy the Senators' druthers but not his own, or expect to have no judges confirmed.  And that's without the filibuster.  For the system to work over the long run, we need to expect that Senators will give some deference to a President's choice: more deference when the President is in the same party as the Senate majority; less (but still some) deference when they are of different parties.  And that is pretty much how things have traditionally worked--at least until the very recent period of breakdown.

Meanwhile, the answer to the question of how much deference members of Congress should give the President in considering ordinary legislation is probably "close to zero."  If a member of Congress thinks that, all things considered, some proposed legislation would make the republic worse than the next most likely alternative would, then (absent some sort of promise from the President or party loyalty in the case of a legislator of the same party as the President) the member of Congress should vote against the bill.

Now it's not entirely clear to me that filibuster/cloture rules are the right tool for implementing the foregoing norms.  However, assuming they are, then I would group executive and judicial nominations together in one category, while putting ordinary legislation in the other.  That is, if we think of the filibuster rule as a rough proxy for how easy or hard it should be for the President to work his will in Congress, we would say that it's easier to justify the filibuster for ordinary legislation than for either kind of nomination.  As between judicial and executive nominations, I suppose we might think that the President is entitled to more deference with respect to executive nominations, and therefore that if one wants to eliminate the filibuster as to one category only, Reid's decision to start with executive nominations makes sense.

Having said that, it strikes me that this whole issue is quite amenable to just-so stories.  I once read a thoughtful analysis that defended the filibuster only for judicial nominees, on the theory that a super-majority requirement would lead to a long-term equilibrium in which Presidents appointed moderates.  It hasn't exactly worked that way lately, but there are so many moving parts to this sort of issue that it's nearly impossible to predict how any particular set of rules will work in practice.

30 comments:

Michael C. Dorf said...

From a reader who had difficulty posting his comment directly: "Why are legislators so stupid?? Return the filibuster to the way it was: Yes, you can stop or hold up legislation, but you have to actually talk, not just announce your opposition. That'll leave the ability of the minority to take drastic action in rare cases, while removing the minority's ability to routinely thwart legislation. Reid's plan will backfire."

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egarber said...

I’m wondering if there’s also a “making law” distinction that might matter. In a sense, any government official is making law when carry out his / her duties. But whereas executive interpretation constitutes a perishable amount of time (the next administration can simply shift gears), legislation and judicial decision making carry a certain permanence. Of course, this in itself wouldn’t seem to afford the president more deference on legislation, but it might fortify the judiciary / executive branch distinction – i.e., the judiciary is a co-equal branch and these appointments come with life-tenure (permanence).

The Dismal Political Economist said...

Interesting topic, but one must also focus on the non-democratic nature of the Senate itself before rendering an opinion on the filibuster. The Senate is non-democratic in two ways.

1. Each state, regardless of its population gets two Senators

2. The popularity disparity between the states has grown over the decades and continues to grow (the admission of Hawaii and Alaska created even more disparity).

Furthermore the filibuster has changed in recent decades, from a seldom used tactic to a situation where 60 senators are now required on almost every vote. (We’ll leave reconciliation out of this for the time being.)

As a result there is the potential for a ‘tyranny of the minority’, and under current filibuster rules senators representing far less than 50% of the population can effectively block any action.

There is also the issue of the Constitution. If the Founding Fathers had wanted a super majority for approval of administration nominees, judicial nominees and legislation they would have put in the Document. On the other hand, they did not affirm simple majority senatorial vote.

That a simple majority vote for Presidential appointees is appropriate would seem an uncontested issue, for reasons explained by Mr. Dorf. The President and the Executive Branch are entitled to the staff they want. If a nominee is really unfit, the public process of confirmation will likely result in even the President’s own party supplying enough votes to deny confirmation, so a check is in place.

For judicial nominees and for legislation the issue gets trickier, particularly in the case where one party has control of the executive branch and the Senate, but the other party has enough votes to sustain a filibuster. But given points 1 and 2 above, it would seem that a minority in the Senate has enough power without adding a super majority requirement on to the process. This, along with the lack of Constitutional requirement for 60 votes would seem to shift the argument in favor of no filibuster. If the filibuster rules stay in place does anyone believe that the Senate will confirm any Supreme Court nominee by Mr. Obama should a vacancy occur?

A party that consistently votes to confirm bad judges and pass bad legislation or that refuses to confirm good judges and does not pass good legislation will have to answer to the voters at the ballot box. No, not a perfect solution, not even a good solution given that some voters will vote the party line no matter what, but about the only solution in a democracy.

Will this result in bad legislation and bad judges? Absolutely. But sometimes America must experience the bad in order to take action to ensure the good.

tjchiang said...

"If the answer is 'none,' then whenever the party with a majority in the Senate differs from the President's party, the President will either have to nominate judges who satisfy the Senators' druthers but not his own, or expect to have no judges confirmed."

That is a really strange statement. It is like saying that if the Senate gives no deference to the House in evaluating legislation, then the House would have to pass legislation that satisfies the Senate's preferences but not its own, or expect no legislation to be passed (when the House and Senate are controlled by different parties). That is not a complete description of how things work. Some legislation does not pass because of gridlock, but some legislation does, and what does ultimately reflects some sort of compromise.

Michael C. Dorf said...

TJ, you're fighting the hypo. I'm not saying that's how things actually work. I'm saying that's how they would work (or rather, break down), if Senators gave no deference to a president's picks.

tjchiang said...

I don't think I'm fighting the hypo. The hypo, as I understand it, is that Senators would give no deference to the President's nominees. You then seem to postulate that, in that hypothetical world, nominees would be 100% favorable to the Senate and 0% favorable to the President (or no one would be confirmed). My point is, in a hypothetical world where the Senate gives no deference, the two institutions would still be in a bilateral monopoly with each other, and presumably nominees would end up somewhere in the middle. "Compromising" with the President is not the same as "deferring" to the President.

Michael C. Dorf said...

I think that's right for legislation but, depending on whether there's political pressure, maybe not for judges. The Senators can just wait until their party recaptures the presidency.

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I like to read on about whether the filibuster reform stops at executive nominees or not.
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