ConfirmThem

By AndrewHyman Posted in Senate Rules — Comments () / Email this page » / Leave a comment »

A bunch of groups have written to the Senate leadership to express concern that limiting or getting rid of nomination filibusters could lead to the same fate for legislative filibusters. They mistakenly write:

There has never been a distinction between filibusters of legislation or nominations. Thus, we are concerned that if the so-called "nuclear option" is exercised to eliminate the filibuster on judicial nominations, it may also be exercised to eliminate senators' right to filibuster legislation.

Actually, from 1917 to 1949, nomination filibusters were treated by the Senate Rules very differently from legislative filibusters, according to the Congressional Research Service (CRS): "Until 1949, cloture could be moved only on legislative measures, and nominations could not be subject to cloture attempts."

The distinction between nominations and legislation has also been evident in practice: "From 1949 through 2002, cloture was sought on 35 nominations . . . . Only 3 of the 35 nominees were not confirmed" (and only one of those 3 was a judicial nominee). In contrast, there have been vastly more cloture motions on legislation. Obviously, there has long been a distinction between filibusters of legislation and nominations. This makes sense, because nominations and legislation are different, and are covered by different articles of the Constitution. It's like comparing apples and meatloaf.

Meanwhile, Marcy Dallmeyer of Lenox, Massachusetts deplores the Democrats' "twisting of parliamentary procedure which prevents those nominees from being voted on by the full Senate." She's right. It is indeed twisting the rules when you filibuster until the President nominates the people you want to be nominated. The proper role of the Senate is to weed out unqualified people, rather than to usurp the nomination power.

NOTE: Regarding the "slippery slope" argument, the Congressional Research Service (CRS) put out a report today saying the following:

If a change to the rules were accomplished by a majority vote, nothing would prevent other changes to the rules from being proposed, which could then conceivably be accomplished with a majority vote to end debate on them as well.

Rules were adopted and changed for many years by simple majority vote during the first years of the Senate, so the precedent is already there, it seems to me. In other words, the CRS is right that "nothing would prevent other changes" but I would also argue that "nothing does prevent other changes." The power to change the Senate rules by simple majority vote comes straight from the Constitution. Incidentally, I think Senate Rule 31, Section 3 already requires a majority vote to reject a nominee, so changing the text of the Senate rules does not necessarily seem like the only way.