Tuesday, November 20, 2012

Judicial Nomation Reform?

I think the strongest case for protection of minorities in the Senate is in confirmation of judges. It's a lifetime appointment; we're now being governed in part by decisions made thanks to elections in the 1980s and 1990s (and, for some appeals level judges, even earlier). One can certainly make the case that even a concurrent majority in both the presidency and the Senate should not be sufficient to automatically deserve to get their way.

And yet: judges have to be confirmed. Stalemate has to be avoided. Even the strongest supporters of the filibuster agree, I think, that a situation in which the minority party has the ability to simply shut down the confirmation process across the board isn't the way to go. At the extremes: a Senate, even a Senate majority, which insists it will only confirm a particular choice and reject all others would be flipping the Constitutional procedure on its head, and it's even worse if a minority of 42 or 43 or even 49 Senators is able to make that demand.

So the question is exactly how Senate minorities should have a say. I've been saying that I'm fine with continuing the current filibuster/cloture rules, but perhaps with a smaller supermajority needed (I also think there should be no holds at all: once a nominee clears Judiciary, they get a set vote at a time certain. But put that aside for now).

Matt Glassman, however, proposes something different that I find intriguing: replace unlimited debate and cloture with time limits. Long ones. He suggests (and I'm cleaning up from twitter): "If I were King of Senate, I would immediately switch to long limit on debate (say 30 hours) for all nominations --judicial or executive branch." And "You could have really long time limits. If the majority wanted a single judge that bad, tying up the Senate floor for say, 150 hours, would be very costly."

I find the idea...intriguing. It wouldn't imply any romantic ideas about a talking filibuster; presumably it would involve a set period in which both sides would have a normal opportunity to speak, with a fixed time limit. No cots. No recipes and phone books (or, as I've argued, reading from the blogs and other easily available talking points). It would impose costs on the majority which they would be willing to bear if they are intense enough, which fits well with my feeling that intense majorities should be protected.

On the other hand, I'm not sure how one would set the incentives properly for the minority. We don't want them to exercise their full rights to delay everything, right? We do want the minority to be protected (in some fashion) on judges they strongly object to; we don't want them to use the rules to delay in cases where they have no objection to a judge, thus forcing the majority to choose between the (non-controversial) judge and a legislative agenda.

Remember, all of this from my point of view is from the perspective that minority party Senators would mostly be glad to take to the Senate floor and recite talking points, so that forcing them to talk per se doesn't really impose much of a cost, and simple attrition can't work (unless you set up the rules so severely that you're basically establishing a physical challenge that cannot be met. That's possible, but it strikes me as a horrible way to run things; if that's what you want to do, just make the effect the rules and skip the drama).

So: I don't know! I'm open to suggestions. The challenge: beginning from a premise that we do want to protect intense minorities, but also that we want to empower intense majorities, how do we design a system for judicial nomination confirmations? I'm not satisfied with any of the proposals out there, including, really, my own. I strongly believe that judges are different from executive branch nominations, and both are different from legislation. But what's the best way to do it?

My instinct is that large time limits can be part of a package of judicial nomination reforms, but not the whole thing. But I really don't know. So I'll throw the question out to

24 comments:

  1. Alternatively, if the party that doesn't hold the White House wants to block presidential nominees to the bench it can try to win some more senate seats.

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    1. That's true. But I don't think indifferent majorities should necessarily defeat intense minorities, and I'm not even sure that majorities should always win, regardless of intensity.

      Also: whatever we think, Senators are reluctant to switch over to a majority-party-rules chamber, so there's reason to develop workable reforms whether one finds them ideal or not.

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    2. May I respectfully dissent? A majority of 55 who is willing to vote for a judicial nominee but is blocked by the filibuster, is not an indifferent majority, it's a "sabotaged" majority.

      What an intense minority ought to do, in my opinion, is pick up votes from the majority to turn it into a minority. Case in point: the Clarence Thomas nomination.

      Republicans had only 43 votes in October 1991 (and they even lost two liberal Republicans in the final vote). But they were able to pick up 11 conservative or moderate Democrats. That is what an intense minority ought to do: turn up enough votes from an indifferent majority to actually become a majority.

      Clarence Thomas did not have the votes to survive cloture, but he was not filibustered. But he had the votes to obtain confirmation, and he did. That should be the bar, in my opinion.

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  2. Unlimited debate for the first nominee to fill every vacancy, but if cloture fails, limited debate(24 hours or so) for the second nominee. Call it the Monty Hall rule: the minority can take what they have, or risk it all for what's behind door number two.

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  3. Just fix the real problem which is lifetime appointments for judges which results in a long retired or even dead President continuing to have a powerful influence over the judiciary and the country for decades after he leaves office.

    For instance you could change the Constitution to have a fixed 20 year term for Federal judges. Or you could just gradually increase the size of the Supreme Court to, say, 15. Then the stakes for any individual judicial nominee would be lower and we wouldn't need to have separate cloture rules for judicial appointments than we have for anything else.

    Then like Matt says above it would be the responsibility of the voters to change the composition of the Senate and the Presidency if they didn't like the judges that were being confirmed.

    I know this response doesn't conform to your premise, but protecting the right of an intense (or really just a disciplined) minority to block duly nominated judges is something you really need to provide arguments for and not just assume is a value everybody should share.

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    1. +1. Lifetime tenure is the problem here.

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    2. While I agree with Ron E. last paragraph, may I be allowed to give a little advice based on Comparative Law? Here in Spain our Supreme Court ("Tribunal Constitucional") Justices have a 9 year tenure.

      It does NOT make them more independent (if anything, it makes them LESS independent) and it does NOT make confirmations smoother (the last nominations were blocked for TWO full years).

      I do not quite think lifetime tenure is the problem here.

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  4. I don't think the problem is solvable. Any tool made available to "intense" minorities is going to be used on a regular basis for nearly everything even if the minority doesn't really care, just like the filibuster is now. No rule is going to bring norms of restraint back.

    Somewhat unrelated question: is there any legislature other than the US Senate that has an effective supermajority requirement for routine business? At the very least I know that it's uncommon and the countries that don't have them seem to get along fine.

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    1. i think this is right. we cannot assume the minority will use it responsibly anymore, even though once-upon-a-time they actually did. those days are over.

      look, when people vote for a president, then know he gets to appoint judges. when they give him a majority senate on top of that...there shouldn't be an option for the minority party to block anyone. elections have consequences...this is part of that reality.

      i say set a time limit on all nominees, but nothing near 30 hours. cabinet secretaries and supreme court...sure...30 hours or more. anything below that, less than 10 hours, all of which must be used for debate, or it is yielded back. one time is done, simple majority vote.

      the people elect the pres cause they trust him to make those decisions, he should be able to fill out the executive branch to meet the needs of the govt.

      i really do not understand the constant desire to protect the minority's power. they should not have the power to derail whatever they want, otherwise, what really is the point of having a majority?

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  5. My starting place is that it is only where the minority is upset about something that the majority is relatively indifferent to that the minority should win.

    Forcing the the majority to put forward multiple possible nominees (1,2, 30?) forces the majority to choose only a few characteristics that they agree are important simply because not all of the nominees can be identical in every way. Thus, if there is an issue on which the minority cares more than the majority they can probably choose a nominee who respects their preference.

    In a different vein, what about a reform that empowers individual senators, but in a way that a coordinated minority can use?

    * Give each Senator 1 nomination veto (per year? term?)

    * Are there enough judgeships that letting the Senators rotate through choosing the nominee could work? (only for non-Supreme Court)

    Final thought
    For the Supreme Court even the current very obstructionist R minority defeated neither Obama nominee, so I'm not yet convinced that we need to change how SC Justices are chosen. The massive media attention seems to enforce "good" behavior by the minority.

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    1. This is a good point; when it comes to Supreme Court justices the filibuster is still being used in a limited way; both recent failed appointments (Bork and Miers) got up or down votes and lost, while even the Democrats are willing to filibuster lower court nominees. I doubt it's just the higher profile (who's vote for Senator would ever be influenced by something like that?) so it must be something else.

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    2. As a matter of fact, Harriet Miers did not even get an up or down vote; it was a Republican insurrection against her that ended her nomination (Harry Reid, on the contrary, was on the record saying that Miers was someone "he could actually vote for", which probably was the kiss of death for her)

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  6. Along the lines of Jonathan's "superbill", it seems like there needs to be a way to prioritize filibusters? Could you give the minority a certain number of filibuster "dollars" each term, that they could spend however they want? I sure don't know much about game-theory, but is this a game theory-type problem?

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  7. Let's talk about Sotomayer for a minute. When she was first confirmed as a federal judge, there was a custom that senators could propose candidates for federal judgeships for their state. While it was possible for the minority to propose ideological morons, it was customary to name highly competent people who were middle of the road for their areas.

    So perhaps if each Senator could put down 2-3 names, and have a real possibility of getting one in, they might ease up. Especially if there were then mass confirmation hearings.

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  8. I recognize this would be difficult to enforce, but how about requiring "topical" talking filibusters? No more phone books; the minority can only sustain the filibuster as long as they continue to repeat relevant arguments.

    In the world of proliferated partisan blogs it shouldn't be hard to come up with material; however, filibusters of otherwise-acceptable nominations would wear thin awfully quickly. As an illustration, Senator McConnell could easily find and recite a screed that Richard Cordray is a capitalism-hating Marxist, by the third or fourth repeat one figures McConnell would grow self-conscious at the ridicule he was inviting from his peers and whomever was watching on CSPAN at home.

    If the problem is norms, then requiring a topical filibuster forces the minority publicly to look foolish in reciting stupidities against otherwise-acceptable candidates. If the minority really hates a candidate, the topical filibuster shouldn't be difficult to sustain indefinitely (as opposed to a candidate like Cordray that they don't mind). If the majority really wants the candidate, they'll wait it out.

    Definitely an enforcement challenge; otherwise it seems like the topical filibuster could help.

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    1. This filibuster talk got me thinking about the full-of-bluster Newt Gingrich, who made a name with fiery floor rhetoric delivered after hours to an empty house. Presumably, its difficult to look a long-time co-worker and frenemy in the eye and say "Your preferred judge sucks". Twice as hard to do it twice. Really difficult to sustain a filibuster.

      If the general problem is having the minority communicate its interests, make them say it. To the majority's face. Repeatedly, if so desired. A pretty effective communication tool, it seems to me.

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    2. Sorry to perseverate...imagine your golfing buddy and social Beltway friend, across the aisle, pushes a judge you dislike. Its easy enough to read the phone book; that's not personal, that's just "what you do", boilerplate strategy.

      Now imagine looking your buddy in the eye and specifically saying why his preferred judge sucks. And saying it again and again and again. If you really feel it, you'll proceed. But if you don't, you won't.

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    3. Unless it all becomes part of the game, right? And people who become Senators understand games.

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    4. Neil, thanks for taking up the argument, and I see your point: if custom becomes saying whatever ad hominem thing is necessary to sustain a topical talking filibuster, this reform may not present much of a barrier.

      Sake of argument, though, do we really believe that Newt Gingrich saved his anti-liberal vitriol for late at night when his peers were home sleeping because direct partisan confrontation was not custom?

      Maybe, but maybe its inherently a lot harder to say inflammatory stuff to the other guy's face than to the sycophant on Fox News.

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  9. Drum at MoJo suggested going back to the 3/5 present and voting rule, instead of the 3/5 duly elected and sworn. So if 60 Senators are in the chamber, and 36 want to vote, they vote.

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  10. The Constitution calls for the Senate to be consulted on appointments, if they haven't expressed a view after 90 days then the appointment should be automatically confirmed.

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    1. Good idea. The Senate would never go along with it. But the president should make it clear that he'll do a recess appointment after 90 days. Every time. "Hey, I consulted you. You didn't get back to me...".

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    2. Alan and swain, you sure hit it with this idea. I don't like the filibuster and I agree that the minority will forever abuse this procedure. Putting a time limit on the abuse will unclog the pipe. I think 90 days is excessive. An "intense minority" will announce before committee votes where they stand on a particular nominee. I say give them 30 days to protest and to propose an alternative that will serve them and satisfy the President and the minority. Can't do that? Tough. Once the gavel lands on day 30, the President's nominee goes to a floor vote and a simple majority will confirm the appointment.

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  11. could try democracy: judges are elected, the sky doesn't fall.

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