End Holds on Judicial Nominations

The Democrats were on the floor of the Senate today complaining about Republican holds that are "preventing" the Senate from acting on judicial nominations -- there are apparently 23 nominations that have cleared the Judiciary Committee but still await Senate action.

Look: yes, Republicans are doing something unprecedented.  They are, apparently, violating the norms of the Senate by blocking basically uncontroversial nominations.  Fine.  That is, in fact, a violation of a norm.  But it's not violating a rule, and it's far past time for Democrats to respond.  Let me explain...

Ah, this is tricky.  There are filibusters, and there are filibusters; there are holds, and then there are holds.  In some sense, a hold is essentially a threat of a filibuster.  The majority respects holds for two reasons.  First, because a filibuster is costly to the majority; second, because of comity -- because all Senators have an interest in the ability of each Senator to have individual influence.  Let's leave aside the comity reason for a minute, and focus on the threat.  Again, there are different levels of filibuster threat.  In some cases, there's a threat that the minority has the votes to defeat cloture.  In that case, there's not much the majority can do, barring negotiation and dealmaking.  But  that hasn't been the case with nominations in this Congress: once judicial and executive nominations reach the Senate floor, they've all been approved with at least 60 votes.  So the judicial nomination holds on current nominees are only threats to eat up floor time, not indications that the nomination could be defeated (that is, by defeating cloture). 

How serious is that threat?  In my view, not very.  Yes, moving all 23 nominations separately would take up some floor time, if Republicans maximize the delay.  Would they do so?  I'm not convinced. Republicans have in fact yielded back postcloture time on a variety of measures during this Congress, and while I'm sure that they could handle using it all up if they wanted to, I suspect that when push came to shove, very view Republicans really want to talk about some obscure nominee for hours on the floor of the Senate.  Especially if Harry Reid played hardball and asked the Senate to stay in late at night (and I believe there are some other parliamentary procedure he could use to minimize floor time per nomination, although the more this moves into the details, the more I'm hesitant to trust my understanding of the fine points of the rules).  Basically, I think the threat of eating up enormous amounts of floor time is largely bluff.

Now, that gets back to the comity thing.  I think Harry Reid is probably accurately representing the views of Democratic Senators by respecting all holds.  The hold is a great thing for Senators; it allows them the opportunity, on an individual basis, to negotiate for something important to their state, or to them personally.  As I've argued, however, that's really much less true for holds on judicial nominations.  Unlike bills, nominations are up-and-down votes; it's not possible, as it is with bills, to add or subtract a provision in order to satisfy the concerns of individual Senators.  And with executive branch nominations, it's possible cut deals, as well -- in fact, the nomination process is an important part of how the Senate fights for control over the bureaucracy.  But one cannot bargain in that way with judicial nominees; a Senator cannot threaten a hold unless the nominee assures them she will vote some particular way in future cases.  In other words, if in a sense a hold is a request for the majority to wait until some detail is worked out, there are no details to be worked out on judicial nominations.  Yes, in particular cases a Senator might want to wait until some paperwork is completed or something like that, and of course a Senator may want to hold a nominee hostage in order to bargain for some unrelated item, but neither of those are good reasons for the majority to respect an indefinite hold (on the latter -- there are always executive branch nominees, if Senators want hostages). 

In other words, there is no good reason beyond tradition for the Senate Majority Leader to respect holds on judicial nominees in cases in which fewer than 41 Senators are expected to support cloture.

And, as Greg Koger explains in Filibustering, the hold as a tradition doesn't really go back very long into Senate history -- the formal hold system evolved after World War II.  And, regardless, holds used in this way were never part of that tradition, so it's hard to see defending them on that basis. 

That leaves only one reason to respect these holds, which is the possibility that Republicans would be so angry if Harry Reid moved on judicial nominations despite GOP requests for holds that Republicans would try to shut down the chamber.  As Koger has argued, however, that's apt to be an empty threat; if it was in their interest right now to, say, force the reading clerk to read every bill, then they would already be doing so.  Sure, in the heat of battle, they might change their calculations...but at this point of the Congress, and given how many roadblocks Republicans have set down already, I don't think the Democrats have a lot to lose. 

So: the one easy reform that Harry Reid could implement unilaterally, right now, would be to stop respecting holds on judicial nominations.  If Republicans could find enough votes to prevent cloture at that point -- fine, let Snowe and Collins explain why they're blocking nominations that they support in order to preserve their right to block nominations which they support.  I don't believe they'll do it.  Ending holds on noncontroversial judicial nominations would make the Senate function better without harming the rights of the minority party.  It would, in the phrase of the week, make the Senate more like the Senate.  Harry Reid should do it.