The lesson here isn’t that Democrats shouldn’t fight hard, or that they should be reluctant to use the same tools that Republicans use. It’s that every discussion of baroque, circuitous work-arounds for obstructionism should consider what would happen if the same technique is used to maximum effect by Repubicans. Once you dust off some little-used piece of Constitutional equipment, it’s going to become a standard part of the Republican playbook. When that’s fully considered, my guess is that we’ll want to avoid those dodges and put more energy into reforming the filibuster and keeping a Senate majority.Well, I certainly agree that parties should work hard to win Senate seats. As for the caution...I think that's too clever by half. If the other party is entirely cutthroat and vicious, then it doesn't really matter what your party does, does it?
But mainly I just want to go over where I think things should be. In my view, the old status quo on nominations was a good one. Presidents were thought to be entitled to their choice of nominees absent any spectacular disqualifying problems, although individual Senators could use the process to fight for specific, usually local, policy commitments from the incoming executive branch personnel. That was first modified in 1989 when the Democrats defeated John Tower -- the burden started shifting, unfortunately, from the Senate's need to show there was something horribly wrong with the nominee to the nominee's need to prove he or she was okay. That was unfortunate. But the newest twist, which didn't happen until 2009, was the idea that it took 60 votes to confirm all of them, and that the minority party would seek to permanently block any nominee if they didn't like what the basic mission of the department or agency.
So the reforms I'd support would include reducing cloture to a simple majority for executive branch nominees; dramatically reducing vetting; and having the Majority Leader use his or her discretion to only respect holds that are placed by individual or small groups of Senators who are actively negotiating specific deals, especially over policy that affects their states.
In the meantime, yeah, I think it would be smart for Obama to defeat the current round of obstruction by making recess appointments despite the current non-recess recess that Congress is taking. Would it take that tactic off the table for future Democratic Senates? Yup, it would -- and I think that would be progress.