Want some really good news in Senate reform?
It’s really good news, that is, if you have a middle position on the filibuster: that the Senate should reform it, not eliminate it, but certainly not continue with the 60-vote Senate of the last few years.
The news is that, gradually, Democrats in the Senate seems to be concluding that different rules are needed for legislation, for judicial nominations and for executive-branch nominations. Democratic senators have already separated nominations from the legislative filibuster; now, according to reporting from Politico’s Burgess Everett, they’re considering the “nuclear option” only on executive-branch nominations.
This is pretty reasonable. The case for requiring a supermajority on lifetime positions to courts, especially policy-making appellate courts, is fairly strong, although that leaves open the question of what to do when a minority uses it (or, as the majority would say, abuses it) too often. That said, Republicans have defeated only a handful of judicial picks by filibuster. Most of their obstruction has been foot-dragging, not outright attempts to defeat nominees. That’s a significant problem, especially since it’s been expanded to district-court nominees, but it isn’t one that should be solved by eliminated filibusters, at least not if other options are available.
On the other hand, the government simply doesn’t work if the president is unable to fill executive-branch positions, and the consensus for two centuries has been that presidents are entitled to a very wide benefit of the doubt about the particular people they want in those spots. Nor is there much historical precedent or reasonable argument for “nullification” filibusters, in which the minority blockades a position and, with only 40-something votes, is able to defeat any possible nominee. The best solution here is simple majority cloture — simple majority in order to allow nominations to be confirmed easily, but cloture in order to retain the ability of senators to place holds and, generally, to use nominations for leverage to affect executive-branch agencies.
At least, those are my views. But the larger point is that each of these situations — judicial nominations, executive-branch nominations and legislation — is different and requires ground rules that respect that difference. I’m very glad to see the Senate moving in the direction of understanding those differences and of trying to write rules to make the chamber work better.