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.