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Sunday, November 8, 2009
 
 
ARTICLES  &  COMMENTARY
Senate Should Seize Change to Fix Rules, End Nominee Wars
 
In Senate, nomination and confirmation process of executive nominees needs to be easier, and a commitment on the part of party leaders to limit their delaysover nominees is required.
 

For that subset of political junkies seriously concerned about governing, the past decade-plus has been a tumultuous and unpleasant one. The politics of vilification, the criminalization of policy differences and the sliming of people in public life all have made it more difficult to govern and more difficult to find good people willing to serve.

We are well past the point of knowing for sure who cast the first stone, but it is clear that there are multiple violators on both (or all) sides and precious few who can hold any moral high ground.

This is prelude to discussing the protracted negotiations in the Senate over its organization under the Democrats. Although it is too bad that the parties could not come to an agreement on their own, it's good that the issues will be resolved, at least for now, via floor votes sometime in the next week or two.

The issues on the table right now include guarantees for floor votes on Supreme Court nominees (whatever the Senate Judiciary Committee decides) and the public identification of Senators who veto via "blue slipping" lower court nominees from their states or regions.

Senate Majority Leader Thomas Daschle (D-S.D.) has said he opposes an automatic floor vote on nominees rejected by a committee, since it would undermine the committee process, and could support public identification of blue slips if it were made permanent. Daschle noted that when Republicans controlled the Senate, they did not make blue slips public and rejected requests from Democrats to do so.

Republicans are ready to bring up the difficulties former President George Bush had with his nominees when Democrats controlled the Senate and the character assassinations of numerous nominees going back to the Reagan era. Democrats can give chapter and verse on the rank hypocrisy of Republicans who kept numerious Clinton nominees twisting slowly in the wind for years--including some court nominees held without hearings or votes for longer than one presidential term--and now ask piously for a "fairness" they did not recognize or follow until this year.

What to do? This is a great opportunity to forge a new and enduring bipartisan agreement that will advance mightily the broader goal of erasing the politics of vilification and sliming. To do so, however, requires more than two votes on the Senate floor for the current organization of the body.

What is needed are permanent changes in Senate rules, agreement to expedite passage of a piece of legislation now brewing to make the nomination and confirmation process of executive nominees easier, and a public commitment on the part of both party leaders to limit their delays and roadblocks to the small subset of executive and judicial nominees over whom there is genuine controversy. A vow to curb personal attacks would also be helpful.

To begin with, it is time to redraft some Senate rules and add new ones. There is no reasonable rationale for keeping secret the blackballs cast by Senators against judicial nominees. It was wrong for Republicans to do it in the Clinton era; it is wrong for Democrats to do it in the Bush era. And it would be wrong for future Senates to do so in the next presidency. An end to the secrecy should be codified in the rules.

But we should go further. There is a much more pervasive and pernicious process in the Senate than blue slips for executive nominees--that is, the hold. The hold is nowhere in Senate rules.

As I and others have noted ad nauseam, historically the hold was meant as a courtesy to individual Senators when an issue of importance arose. It gave them a week or two to prepare before floor debate or delayed the vote until they were able to be present.

It has morphed into something very different, though--the equivalent of a single-Senator veto over nominees and an effective hostage-taking weapon for Senators to use as leverage for extraneous grievances with the White House.

After acceptance of a reform pushed by Sens. Ron Wyden (D-Ore.) and Chuck Grassley (R-Iowa), holds are now supposed to be made public. Sometimes they are. But even if they all were, it is not enough. It is flat wrong for one, two or three Senators to be able to kill nominations.

One good example: James Hormel, the Clinton nominee for ambassador to Luxembourg, was voted out favorably by a huge margin by the Foreign Relations Committee, and then saw his nomination deep-sixed by three Republican Senators. I'd like to see what those Republicans who are now calling for fairness would call that. There are many other instances, as well.

We know that the United States was denied an ambassador in Indonesia for more than a year during a critical period because a Republican Senator had an unrelated grievance with the State Department over a whistleblower. This eventually caused the nominee, one of our superstars in the Foreign Service, to resign in despair and disgust.

How about a Senate rule acknowledging the existence of holds, but limiting their duration to 60 days? Can anyone with a straight face justify the blatant violation of every rule of parliamentary procedure and fairness that the current exercise of the hold represents? The human cost to good people willing to make the sacrifices to serve and go through the tedious security-disclosure process and the Senate committee hearing process--and then twisting in the wind for months or years because of the capricious actions of one or two lawmakers--is enormous and a huge barrier to service.

Next, how about a broad bipartisan agreement to pass the Lieberman-Thompson bill now being drafted in the Governmental Affairs Committee to streamline the forms and disclosure process? At the same time, it would not hurt for the Senate to agree to examine and cut back on the number of presidential executive appointments requiring Senate confirmation (now more than 1,250, aside from military promotions) and to have a procedure for waiving hearings for some less consequential or controversial nominations. And how about a bipartisan message to the White House indicating support for an executive order to streamline the FBI security process?

Kudos to Daschle for his stated willingness to avoid payback, to ignore the temptation to yell "hypocrite" at his GOP counterparts. Kudos to those Republicans who understand that fairness is a two-way street. Kudos to Sens. Fred Thompson (R-Tenn.)and Joe Lieberman (D-Conn.) for their bipartisan efforts to make governing easier. Now the entire Senate needs to seize the opportunity to do something tangible.

Norman J. Ornstein is a resident scholar at AEI.

 
 
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