by Jonathan Arogeti
Adding to a growing bipartisan chorus to break the obstructionist impasse over judicial nominations in Congress, two more former government officials from the two sides of the political aisle are urging reform.
In a Tuesday op-ed for Politico, former Rep. Tom Davis (R-Va.) notes that individual senators are holding presidential nominations “hostage,” trying to “win concession … or just to score political points.” And on the same day in an op-ed for The Hill, Bill Galston, a former senior adviser to President Clinton, notes that “an explosive uptick in ideologically driven filibusters” is “freez[ing]” congressional action.
No Labels, a group Davis and Galston helped co-found, is unveiling a 12-point plan with one simple goal: to make Congress work. Part of the plan includes a proposal to require up-or-down votes on presidential appointments. They recommend, “[A]ll presidential nominations should be confirmed or rejected within 90 days of the nomination being received by the Senate. This time frame includes both committee and floor action. If a nominee's name is not confirmed or rejected within 90 days, the nominee would be confirmed by default.” A second proposal would fix the filibuster by requiring filibusters à la Mr. Smith Goes to Washington and end the filibuster on motions to proceed.
Norman Ornstein, a resident scholar at the conservative American Enterprise Institute, says the Senate should feel “shame” for using delaying tactics in just the last week to halt the nomination of Caitlin Halligan to the judiciary, Richard Cordray to a consumer bureau and Mari Carmen Aponte to an ambassadorship. These tactics notably doomed the judicial nominations of Miguel Estrada, one of President George W. Bush’s nominees, and Goodwin Liu, another judicial nominee of President Obama.
Michael Gerhardt, a former Clinton-era official and now a law professor at the University of North Carolina Chapel Hill, and Richard Painter, a former Bush-era official and now a law professor at the University of Minnesota, published an ACS Issue Brief that proposes judicial nominations reform.
The two provide three primary proposals to unclog the logjam:
First, Senate confirmation hearings should never be delayed provided that the nominee has complied with reasonable requests for information from the Judiciary Committee. Committee rules – or norms – should provide that a hearing must be scheduled for a date within 90 days of when the President sends a nomination to the Senate.
Second, the Senate should continue to adhere to its agreement earlier this year to bar the use of anonymous holds – and to forego similar mechanisms – to delay any nomination. …
Third, once a judicial nominee has been reported out of the Judiciary Committee and the nomination has been sent to the Senate floor, the presumption in the Senate should be that a majority of “yes” votes are needed to confirm the nominee.
If the Senate were to follow No Labels’ recommendations – and the body were to confirm all nominees with an American Bar Association rating of substantial majority qualified or higher – there would be more than a 33 percent reduction in the number of federal judicial vacancies. And with regard to the nomination of Caitlin Halligan to the U.S. Court of Appeal for the District of Columbia Circuit, the Senate would be in one of two places. Either the body would have moved on to other pressing national business, dispensing with her nomination by a simple majority up-or-down vote. Or it would still be in the midst of a weeklong filibuster.
For more information on the judicial nomination process and the vacancy crisis, visit JudicialNominations.org.