Filibuster Saga

Posted November 21, 2003 at 5:59pm

The 39 straight hours of debate earlier this month initiated by Senate Republican leaders may prove to be one of those “be careful what you wish for” scenarios.

Their intent was to expose to public scrutiny what they believe to be obstructionist tactics by Democrats using filibusters to block confirmation of some of President Bush’s judicial appointments. The result may be that the public gets a very vivid demonstration indeed of the lack of leadership demonstrated on both sides of the aisle — and at both ends of Pennsylvania Avenue — when it comes to doing what is best for the country regarding presidential appointments.

This is the latest chapter in a long and increasingly disappointing story of those who claim to be our leaders displaying a stunning scarcity of statesmanship regarding filling positions essential to our democracy. The previous chapter ended after calls from Senators of both parties last spring to reform the judicial confirmation process went unanswered, and Miguel Estrada finally withdrew his nomination to the U.S. Court of Appeals for D.C. Circuit in September after years of inaction.

It’s difficult not to be skeptical about the latest calls from Senators of both parties to reform the judicial appointments process. This is not because their concern about the problem is ill-founded or insincere, or their worry about the consequences of the increasingly partisan disputes on the Senate are unjustified.

It is because the executive branch appointments process has also been broken and in need of repair for quite some time, and the Senate has had every opportunity to fix it, yet they have failed to act. It is this failure to muster the political will to forge a reasonable compromise that is so troubling for the prospects of judicial appointments reform.

The flaws of the executive appointments process have been well documented, and sensible reforms have been proposed for years. Recommendations for reform were proposed in April 2001 by former Sen. Nancy Kassebaum Baker (R-Kan.) and former Office of Management and Budget Director Franklin D. Raines, then co-chairmen of The Presidential Appointee Initiative. The recommendations included changes in Senate rules, such as limiting the imposition of “holds” by all Senators to a total of no more than 14 days, and requiring up-or-down confirmation votes within 45 days after receipt of a nomination. [IMGCAP(1)]

Bipartisan legislation was introduced in the last session of Congress that proposed to streamline the process for executive branch nominees. The Presidential Appointments Improvement Act of 2002 was placed on the Senate legislative calendar in May 2002 but languished there with no action taken. Sen. George Voinovich (R-Ohio), to his credit, reintroduced similar legislation in this session, but it too may suffer the same fate.

Yet now we find this same Senate hand-wringing over the state of the judicial appointments process, after they have already demonstrated their inability to fix the executive appointments process, arguably an easier process to reform. Judicial appointments are often so controversial because they involve lifetime tenure, baggage that executive appointments do not have. Nevertheless, both remain broken.

This new, sad chapter presents an opportunity leaders in the White House and Senate should not squander. Republicans think that filibusters of nominations are unconstitutional, and Democrats think the president has essentially discarded the advice and consent requirement of the Constitution. Maybe the president should obtain a bit more advice, and the Senate should provide a bit more consent.

The Republicans have a starting point with their proposed rule change of a gradually declining threshold on votes needed to break a filibuster until a simple majority vote is required. But that could have been done without 39 hours of arguments that have been made before.

Thirty-nine hours of action would be more constructive, in the form of convening a summit on appointments reform. The president, Alberto Gonzales and others from the White House Counsel’s office should meet with Senate Judiciary Chairman Orrin Hatch (R-Utah) and ranking member Patrick Leahy (D-Vt.), Senate Majority Leader Bill Frist (R-Tenn.), Senate Minority Leader Tom Daschle (D-S.C.), Senate Rules and Administration Chairman Trent Lott (R-Miss.), Voinovich and others to forge a treaty on the issue based on some of the recommendations already put forward. Enacting reform of the presidential appointments process for both judicial and executive nominees, not merely talking about it, is what citizens expect from their leaders.

In a letter last April to party leaders, Senate freshmen called for fairness to judicial nominees, and now the Republican slogan is “fair vote, up or down.” The letter echoed the sentiments expressed by more than 200 past executive appointees who made the same call for fairness in an open letter to President Bush and the Congress in November 2002. Now is the time to answer that call.

It’s time to put an end to the destructive cycle of payback that has grown from one administration to the next over the past few decades. Persistent vacancies in both the executive and judicial branches reduce the effectiveness of our government, and the problems in the process discourage good people from public service. Nominees deserve to have reason, respect and fairness restored to the process, and so do the American people.

Carole M. Plowfield is the former deputy director of the Presidential Appointee Initiative at the Brookings Institution.