December 24, 2012

I hope everyone saw a great story by Robert Barnes about gridlock and the courts — making the key point that there are more judicial vacancies now than there were when Barack Obama took office. For that, there is plenty of blame to go around.

In fact, the story on judges matches the rest of the story on Senate obstruction over the past 20 years. While Supreme Court nominations had been contentious at least since Lyndon Johnson’s presidency, appeal-court appointments became controversial and subject to out-party obstruction during Bill Clinton’s presidency and remained so when George W. Bush became president. District-court appointments, meanwhile, were generally processed quickly and without much controversy — right up until January 2009.

That fits the rest of the Senate story, which is that filibusters were rare up until 1993, became the common practice on all major items at that point, and then were ratcheted up again by Republicans when Barack Obama became president.

This insistence on a 60 vote Senate for everything, and in delaying even totally uncontroversial nominations (so that some are delayed for weeks or more, only to wind up receiving unanimous or near-unanimous approval) is exactly why Senate reform is so urgent. 

The Mitch McConnell Republican Party, indeed, is making it impossible to maintain the old traditions of the Senate. The body works best when individual senators are able to use their leverage over appointments and other measures to bargain for interests they represent. It also makes some sense for minorities in the Senate to have significant leverage against lifetime appointments to the bench, which can perpetuate the influence of current, transient majorities long after they’re gone. However, if the minority abuses its rights under Senate rules, then those rights aren’t going to last long. 

The other half of this is that a minority party that refuses to abide by traditional norms makes it very difficult for things to work in the Senate, which has traditionally been governed as much by those norms as by rules. 

Barnes is correct that Obama has placed far too low a priority on judicial nominations, and the president deserves the blame for that. Still, the bottom line is that Senate reform is urgent, and the same thing I’ve said regarding many parts of that reform apply here: Those who care about the traditional Senate and the rights of minorities and individual senators should be fighting hardest for change. Because if the rules don’t change, sooner or later the majority party will be frustrated enough that they’ll introduce the dictatorship of the majority party into the Senate, and it will wind up just like the House of Representatives. The only way to prevent that is careful reform now.