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Expert Brief

Obstruction of the Senate and the Future of Rules Reform on Nominations

With mid-term elections fast approaching, the Senate should undertake two common-sense reforms to return judicial and executive branch nominees back to historical norms, where obstruction was the exception, not the rule.

Published: August 19, 2014

*Repro­duced with permis­sion from Daily Report for Exec­ut­ives, 160 DER B-1, 8/19/2014. Copy­right 2014 by The Bureau of National Affairs, Inc. (800–372–1033) http://www.bna.com

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On the eve of the Senate’s month-long August recess, Sen. Mike Enzi (R-Wyo.) blocked an effort to confirm a block of 25 ambas­sad­ors by unan­im­ous consent — includ­ing ambas­sad­ors to foreign policy prior­ity coun­tries such as Russia. Citing Senate Demo­crats’ changes to the fili­buster proced­ure in Novem­ber 2013, Sen. Enzi observed that ‘‘[w]e used to pass ambas­sad­ors and all kinds of people en bloc,’’ but ‘‘it takes a little longer to do the whole process’’ now.

Follow­ing an outcry, the Senate even­tu­ally confirmed the Russian ambas­sador later that night, but dozens of other ambas­sador posts remain vacant, includ­ing in Guatem­ala, one of the prin­cipal origin coun­tries for the surge of unac­com­pan­ied child migrants to the U.S. This is just one small, but import­ant, sign of a broken Senate, which is making it danger­ously diffi­cult for our govern­ment to func­tion effect­ively.

Unpre­ced­en­ted Levels of Senate Obstruc­tion

The nomin­a­tion and confirm­a­tion process for judi­cial and exec­ut­ive branch posi­tions has been embroiled in unpre­ced­en­ted levels of Senate obstruc­tion since 2009, even after changes to the fili­buster process in Novem­ber 2013 allowed up-or-down votes on several high-stakes nomin­ees.

Moreover, a recent Supreme Court decision, National Labor Rela­tions Board v. Noel Canning, 134 S. Ct. 2550 (2014), has opened the door to even greater obstruc­tion as the Court valid­ated the use of ‘‘pro form­a’’ Senate sessions — sessions in name only where no busi­ness occurs — as a way to block the pres­id­ent’s power to make tempor­ary recess appoint­ments.

As with Sen. Enzi’s actions in connec­tion with the confirm­a­tion of ambas­sad­ors, Repub­lican senat­ors have cited the weak­en­ing of the fili­buster power as justi­fic­a­tion for slow-walk­ing nomin­a­tions. But changes to the fili­buster came only after unpre­ced­en­ted abuse of the prac­tice — and it is our agen­cies, courts, and the Amer­ican public that are paying the price from ongo­ing obstruc­tion.

Two Common-Sense Changes

With the clock tick­ing down to the mid-term elec­tions, pres­sure is mount­ing on the Senate to ensure that our courts and exec­ut­ive agen­cies are adequately staffed. Common-sense changes to Senate proced­ures, includ­ing requir­ing senat­ors to forfeit post-cloture ‘‘de­bate’’ time if they fail blue slip process, would go a long way toward ensur­ing that the Senate meets its consti­tu­tional duty to provide ‘‘ad­vice and consent’’ on nomin­ees. These reforms are vital.

While partisan disputes over exec­ut­ive and judi­cial nomin­ees are noth­ing new, in recent years the Senate has seen a break­down in comity and cooper­a­tion around the confirm­a­tion of nomin­ees, leav­ing courts and agen­cies under­staffed. In most cases, nomin­ees have been held up not because of concerns about their qual­i­fic­a­tions, but for partisan reas­ons, includ­ing efforts to deny contro­ver­sial agen­cies such as the National Labor Rela­tions Board a quorum to adju­dic­ate disputes.

Response to Fili­buster Abuse

From 1967 through 2002, cloture — a motion to end debate, which is often used as a proxy for the use of the fili­buster — was only once sought on more than five nomin­a­tions in a two-year  congres­sional term, accord­ing to the Congres­sional Research Service. In contrast, since 2002, cloture was only once sought on fewer than 14 nomin­a­tions in a term. (That was in 2007–2008, when the pres­id­ent and the Senate minor­ity were in the same party, making the fili­buster an unlikely tool.)

Reli­ance on the fili­buster further escal­ated after Pres­id­ent Barack Obama took office in 2009. In fact, of the 168 cloture motions ever filed or recon­sidered on nomin­ees, nearly half have occurred since 2009, accord­ing to a Novem­ber 2013 Congres­sional Research Service report. Among other changes, the Senate has seen levels of polar­iz­a­tion unpre­ced­en­ted in the modern era, along with the loss of lead­ers who had previ­ously brokered comprom­ises when disputes over fili­bustered nomin­ees threatened to derail the confirm­a­tion process.

Use of the fili­buster was trans­formed last Novem­ber follow­ing a stand-off over Repub­lic­ans block­ing an up-or-down vote on three nomin­ees to the U.S. Court of Appeals for the D.C. Circuit — a Court often described as a path­way for future Supreme Court justices and with outsized influ­ence on regu­lat­ory cases. With Major­ity Leader Harry Reid (D-Nev.) arguing that minor­ity obstruc­tion had ‘‘turned ‘advise and consent’ into ‘deny and obstruct,’ ’’Sen­ate Demo­crats replaced the 60-vote require­ment for cloture with a simple major­ity vote for all exec­ut­ive and judi­cial nomin­a­tions (exclud­ing the Supreme Court), while leav­ing the super-major­ity require­ment in place for legis­la­tion.

These changes have had a substan­tial impact on the confirm­a­tion process, weak­en­ing the capa­city of a Senate minor­ity to obstruct nomin­a­tions. Among other things, elim­in­at­ing the super-major­ity require­ment for cloture cleared the path to up-or-down votes on the three D.C. Circuit nomin­ees, the director of the Federal Hous­ing Finance Agency, the chair of the Federal Reserve, and the secret­ary of the Depart­ment of Home­land Secur­ity.

Other Time-Wast­ing Tech­niques Employed

At the same time, however, these changes contrib­uted to further break­downs in comity within the Senate, and substan­tial obstruc­tion contin­ues on two main fronts: the use of time-wast­ing tech­niques, such as util­iz­ing the post-cloture debate period to eat up Senate floor time and slow the confirm­a­tion of nomin­ees and other congres­sional busi­ness; and abuse of the blue slip conven­tion, which gives home-state senat­ors the abil­ity to keep a judi­cial nominee from moving forward in the Judi­ciary Commit­tee, to delay the nomin­a­tion and confirm­a­tion process for judges.

As Senate scholar Norm Ornstein has explained, ‘‘The Senate runs on unan­im­ous consent for almost everything it does, and it’s more of a delic­ate organ­ism than a well-oiled machine. For the Senate to func­tion, it needs comity, and to func­tion well, it needs all of its members — all of them — to cooper­ate.’’ Histor­ic­ally, non-contro­ver­sial nomin­ees have moved through the Senate by unan­im­ous consent, a process by which the Senate can exped­ite  proceed­ings by setting aside proced­ural rules if no Senator objects.

But unan­im­ous consent has become increas­ingly rare for nomin­a­tions — mean­ing that most confirm­a­tions today require over­com­ing a series of proced­ural hurdles, even for non-contro­ver­sial nomin­ees. Since the Novem­ber 2013 fili­buster changes, for example, 31 nomin­ees have been subject to cloture votes even though they were ulti­mately confirmed unan­im­ously, accord­ing to a Common Cause analysis.

Most signi­fic­antly, once cloture is invoked on a nominee, under the Senate rules time is set aside for ‘‘post­clo­ture debate’’ before the final vote takes place. For high-level exec­ut­ive posi­tions and circuit court judges, the post-cloture debate period is 30 hours, while other exec­ut­ive branch nomin­ees face eight hours of post­clo­ture debate time (equally divided between the parties), and district court nomin­ees face two hours. (Even these shorter debate times are part of an agree­ment that expires in 2015 — mean­ing that all nomin­ees could face 30-hour post-cloture debate peri­ods in the future.) Moreover, ‘‘de­bate’’ is a misnomer — under the rules, post-cloture debate time can keep the Senate from conduct­ing any other busi­ness without any debate actu­ally occur­ring.

By routinely using up post-cloture debate time, senat­ors have been able to run down the clock on Senate floor time, leav­ing the Senate with insuf­fi­cient time to consider an accu­mu­lat­ing list of nomin­ees. While Major­ity Leader Reid has prior­it­ized confirm­ing judi­cial nomin­ees, substan­tially accel­er­at­ing confirm­a­tion rates in recent months, scores of exec­ut­ive nomin­ees are wait­ing for a vote. As of July 21, 2014, there were more than 120 nomin­ees to exec­ut­ive branch offices and inde­pend­ent agen­cies pending on the Senate floor, accord­ing to Common Cause, as compared with only 29 at an equi­val­ent point in Pres­id­ent George W. Bush’s term and 25 at an equi­val­ent point in Pres­id­ent Clin­ton’s term.

Blue Slip Abuses

A second source of obstruc­tion targets judi­cial nomin­ees: the blue slip conven­tion, by which a senator can keep a nominee to a judge­ship based in their home state from moving forward through the Judi­ciary Commit­tee, a prac­tice that applies to both trial and appel­late judge­ships. While the process is inten­ded to ensure White House consulta­tion with home-state senat­ors on judi­cial nomin­ees, senat­ors need not give an explan­a­tion as to why they are with­hold­ing the blue slip, and may with­hold one even if the White House sought input from the senator prior to the nomin­a­tion.

The White House has complained about blue slip abuse, noting that among other things, some senat­ors block nomin­ees without explan­a­tion or refuse to consult with the White House in a timely manner while using the threat of the blue slip to discour­age the pres­id­ent from moving forward with nomin­ees. These concerns are suppor­ted by the numbers: strik­ingly, more than half of all judi­cial vacan­cies currently lack nomin­ees, a figure that is heav­ily concen­trated in states with Repub­lican senat­ors.

Indeed, accord­ing to a June 2014 analysis by Russell Wheeler at the Brook­ings Insti­tu­tion, there are 41 vacan­cies that are at least six months old with no nomin­ees, 86 percent of which come from states with at least one Repub­lican senator. These lop-sided numbers strongly suggest that abuses in the consulta­tion process, along with the threat of the blue slip, have slowed down the process of filling judge­ships. Moreover, obstruc­tion at the consulta­tion level appears more extens­ive than under previ­ous admin­is­tra­tions. At an equi­val­ent point in Pres­id­ent Bush’s second term, for example, there were 28 such vacan­cies, 63 percent of which came from states with at least one Demo­cratic senator.

While rapid progress in filling judi­cial vacan­cies in recent months has reduced the number of judi­cial nomin­ees await­ing confirm­a­tion, the oper­a­tion of the blue slip and related obstruc­tion in the consulta­tion process has left dozens of judi­cial vacan­cies without nomin­ees alto­gether. As a result, many vacan­cies may remain unfilled for the fore­see­able future — contrib­ut­ing to delays and other burdens on courts and litig­ants.

Impact of Noel Canning on the Recess Appoint­ment Power

In the past, when the Senate was unable to move forward on confirm­ing nomin­ees, one back­stop to ensure func­tion­ing courts and agen­cies was the pres­id­ent’s power to make recess appoint­ments — tempor­ary appoint­ments that can be made without Senate confirm­a­tion when the Senate is in recess. In its June decision in National Labor Rela­tions Board v. Noel Canning, however, the Supreme Court made it easier for Congress to block the pres­id­ent from making recess appoint­ments as well — adding even greater urgency to Senate obstruc­tion of the confirm­a­tion process.

Noel Canning affirmed the pres­id­ent’s histor­ic­ally broad power under the Consti­tu­tion to make recess appoint­ments, despite calls to dramat­ic­ally narrow the kinds of vacan­cies and Senate recesses subject to this power. However, the Court also found that three of the pres­id­ent’s recess appoint­ments to the National Labor Rela­tions Board were invalid, because they were made during a period when the Senate was hold­ing pro forma sessions — sessions in name only, which last a few seconds with no busi­ness taking place. By valid­at­ing pro forma sessions as a way to block the pres­id­ent’s recess appoint­ment power, the Supreme Court handed the Senate even greater power in the appoint­ments process and created oppor­tun­it­ies for further obstruc­tion.

The NLRB recess appoint­ments at issue in Noel Canning were made under the back­drop of a long-stand­ing partisan tug-of-war about the agency. Senate Repub­lic­ans blocked the pres­id­ent’s appointees through the use of the fili­buster with the goal of render­ing the agency, in the words of one senator, ‘‘in­op­er­able.’’ As a result, the pres­id­ent sought to staff the agency through recess appoint­ments.

Recog­niz­ing that the pres­id­ent inten­ded to make recess appoint­ments, however, House Repub­lic­ans refused to permit the Senate to adjourn for more than three days for its winter recess (pursu­ant to the Consti­tu­tion’s Adjourn­ments Clause). As a result, the Senate util­ized pro forma sessions in order to take a recess. Signi­fic­antly, pro forma sessions had never been used to inter­fere with the pres­id­ent’s recess appoint­ment power before 2007, when Major­ity Leader Harry Reid used the tactic in an effort to block recess appoint­ments by Pres­id­ent George W. Bush.

The Court approved this proced­ural trick, ruling that pro forma sessions should be treated as any other Senate sessions — thus leav­ing either branch of Congress with the power to effect­ively block the pres­id­ent from making recess appoint­ments by refus­ing to consent to a Senate recess absent pro forma sessions. While an indi­vidual senator could keep the Senate from using pro forma sessions during a recess by making a quorum call, effect­ively forcing the Senate back into a normal session unless there was an agree­ment to have a true recess, there is strong insti­tu­tional pres­sure to consent to pro forma sessions, as evid­enced by their success­ful use in 2007 and 2012.

The result is that recess appoint­ments are less likely to work as a safe­guard when the Senate fails to move on nomin­ees — further rais­ing the stakes for the Senate’s confirm­a­tion process and adding even greater urgency to the need to reform Senate prac­tices.

Time for Reform

In the short time remain­ing before the midterm elec­tions, the Senate should under­take two common-sense reforms to help return to histor­ical norms, where obstruc­tion of nomin­ees was the excep­tion, not the rule.

  1. ‘Use-or-Lose’ Post-cloture Debate Time. First, the Senate should adopt a ‘‘use it or lose it’’ stand­ard for post-cloture debate time — a change that Reid sugges­ted in early July he might consider.Debate time should be permit­ted only if it is actu­ally being used for debate — and not as a proced­ural trick to slow down consid­er­a­tion of nomin­ees without a single word actu­ally being uttered. This reform would preserve space for real discus­sion about nomin­ees while creat­ing costs to slow­ing down the confirm­a­tion process simply for the purpose of delay.
  1. Curb Blue-Slip Abuse. Second, Judi­ciary Commit­tee Chair Sen. Patrick Leahy (D-Vt.) should adopt reforms to the blue slip process, includ­ing requir­ing trans­par­ency as to why a senator is block­ing a nominee and barring blue slip obstruc­tion when the White House had sought consulta­tion with the senator before the nomin­a­tion was announced. While Sen. Leahy has emphas­ized the import­ance of the blue slip prac­tice in ensur­ing consulta­tion on judi­cial nomin­a­tions, these reforms would preserve the role of consulta­tion with home-state senat­ors in the iden­ti­fic­a­tion of judi­cial nomin­ees, without empower­ing senat­ors to simply block the filling of judge­ships.

Indeed, there is preced­ent for such changes. For example, when Sen. Orrin Hatch (R-Utah) chaired the Judi­ciary Commit­tee in 2003, he did not allow a ‘‘neg­at­ive’’ blue slip to prevent the commit­tee from moving forward with a nomin­a­tion, ‘‘provided that the Admin­is­tra­tion has engaged in pre-nomin­a­tion consulta­tion with both of the home-state Senat­ors.’’

Too often in recent years, the Senate confirm­a­tion process has been an oppor­tun­ity for partisan games­man­ship and obstruc­tion, leav­ing courts, agen­cies, and the Amer­ican public as polit­ical casu­al­ties. With only a small window of time left before the end of the Senate’s term, it is time for proced­ural reform to help end obstruc­tion of nomin­ees.