It’s Not Only the Rules Holding Up Judicial Nominees

Last November, Senate Democrats reformed filibuster rules to end the stalemate over judicial and executive nominations. However, the number of vacant judgeships and “judicial emergencies” remains high. Senators continue to slow-walk judicial nominees down new paths of delay by failing to recommend nominees to the White House, using blue slips to block nominees, and refusing unanimous consent to hasten votes.

Additional common-sense Senate reforms, like proposed blue slip changes, can help put judges on empty benches. Rule reform is crucial — but the players need to cooperate too. The Senate’s willingness to exploit any opportunity for obstruction, even in a state of judicial crisis, reveals a deeper breakdown in Senate function.  

Case-in-point: the two-hour rule.

One of the Senate’s standing rules, the two-hour rule requires the consent of both the majority and minority party leaders to continue committee meetings more than two hours after the Senate convenes. In practice, the rule is almost always waived – except just after the filibuster was no longer on the table. As Roll Call and the American Bar Association Journal reveal, the month after filibuster reform saw the hearings of more than 20 nominees stalled by repeated invocations of the little-known rule.

For most of us, statutory approval to call off meetings after 2 p.m. seems like a pipe dream. Commentators described the rule as a useless tool of dysfunction, calling it “arcane,” “payback,” and “a mini-filibuster.” But the fact is the rule, which emerged just decades ago, was initially intended “to lift a bogged-down Congress up by its bootstraps.”

Reformers proposed the two-hour rule to lengthen committee working hours. Since the 1946 Legislative Reorganization Act, no committee could meet while the Senate was in session — cutting meetings off at noon. Why the restriction to the morning? Before the 1946 Act, no rules governed what committee did what, how many committees a Senator could serve on, or when committees could meet. The result was what one senator called an “overlapping, duplicating, crazy-quilt system” of committees with intersecting jurisdictions — and meeting times. The 1946 Act was intended to reduce scheduling conflicts for senators, and, by standardizing and publicizing meeting times, make them more accessible to the public.

Passed in 1977, the two-hour rule stemmed from a study on how to streamline Senate procedure and increase legislative output. According to its contemporary supporters, extending the ordinary meeting times for committees would “provide additional time for the committees to accomplish their business while authorizing joint leadership to permit committees to meet after 2 p.m. when circumstances warrant” (emphasis added). The two-hour rule sponsors wanted to make schedules more flexible — allowing the “circumstances” of that day’s business, rather than abstract hourly guidelines, to shape meeting lengths. In fact, the debating senators mainly worried that committee members would be so committed to their work that meetings would be extended too often, making senators miss floor sessions.

Today, the current backlog of committee work has prompted a long, hard look at Senate procedure — and that’s a good thing. We should learn from delays how to increase efficiency; we should be willing to discard remnants of a prior political era that no longer work for today. But we have to recognize that it may not be enough.

As long as there aren’t broader political incentives to move judges from the waiting room to the court room, as long as special interests muffle the voice of constituents whose timely “day in court” is endangered by Senate political brinkmanship, as long as the pile up of pending cases and increasing vacancy rate does not push the Senate into action, obstruction and delay will continue. The problem is not in one rule alone — although rule-by-rule reform is essential. The problem is in a broader climate of hyper-partisanship that places political interests above the committee responsibilities that reformers 30 years ago hoped to advance.

(Photo: Flickr/SGale39)