Ryan Cooper today urges Democrats to further streamline the judicial nomination process, eliminating the post-cloture time that Republicans are using to slow-walk nominations even though they no longer — after majority-imposed reform that created simple majority cloture — have the votes to stop them outright:
[T]here’s simply no reason in this age that the a minority of Senators should be able to force eight to 30 hours of “debate” on a simple nomination. If the majority so chooses, they ought to be able stop debate right away, and process these confirmations by the score. We’re headed to a world where if the a majority of Senators and the president agree, then they get to fill as many vacancies as exist, so we might as well just rip off the band-aid. This is quite obviously what Republicans would be doing if the tables were turned.
Slow down! Whatever the merits of supermajority confirmation of these lifetime appointments (and I think there is a strong argument for it), with simple majority confirmation, I hardly think it is a problem to allow the minority party the ability to do a little foot-dragging.
I certainly agree with Cooper that the pre-reform system, which, as he said, was leaving some seats on the federal bench empty for years, had become dysfunctional. But “advise and consent” should be meaningful, even when one party has the White House and a Senate majority. That means, at a minimum, giving opponents of a nomination at least some ability to create a higher bar for those nominations they strongly oppose. If the Senate isn’t willing to devote a little time to a nomination, then that indicates a lack of support for the nominee and the possibility that the president chose poorly.
At least, that’s the case if the minority uses its abilities to obstruct selectively — only against those selections the minority senators oppose strongly, or (as is the case now) at the end of the session, when they can successfully force the majority to push back lower-priority selections. Assuming majority confirmation in the future, all a unified majority has to do is bring up nominees earlier in the session to ensure confirmation.
Granted, if the minority party constantly exploits every opportunity to obstruct just because it can, whether or not it cares about any particular nominee, the majority party would have little choice but to embark on another round of reform. As was the case with “nullification” obstruction, even those of us who are extremely wary of strict majority rule have to admit that tyranny of the majority, as bad as it is, certainly beats tyranny of the minority.
But we’re not there yet. Allowing the opportunity for slow-walking various measures, including nominations, at the end of a session is a reasonable check against majority rule. And generally allowing for some extended debate — especially if the Senate was to shift to “use it or lose it” rules in which post-cloture time expired if no one wanted to use it — is another reasonable check.