senate committee rejection of judicial candidates

[Keith E. Whittington]

A couple of notes in relation to Mark Scarberry's points below.

As I recall the history of the Philadelphia convention, the
nomination-confirmation sequence was designed to increase the efficiency of the
process (by allowing a unitary entity to nominate) while keeping a check against
particularly bad nominations (by requiring Senate consent).  This would seem to
me to suggest a fairly limited senatorial role in the nomination process (the
consulting), but also minimal obligation on the part of the Senate to go through
hearings or floor votes on disfavored candidates.  Starting with George
Washington, presidents have bristled at anything that looks like a formal
consultation process on nominations.  One advantage of a formal vote is at least
it settles the issue; this process of delay is just a game of chicken to see how
long presidents are willing to leave offices unfilled (depending on the default
-- perhaps inadequately filled with interim appointments, etc.) before
withdrawing a nomination.

As for current filibuster practice, the Senate doesn't force senators to speak
hour after hour precisely because it can't afford that kind of inefficiency
given current workloads.  Given the time bind in the modern Senate, even
individual senators are well positioned to issue threats of delay, and given the
increasing individualism of senators since the early 1960s there are fewer
informal constraints to issuing such threats.  At the same time, the modern
filibuster is essentially partisan and ideological in nature.  Both ideological
extremes have benefited from obstructionist tactics since the early 1970s, and
they have both found ways to get around a variety of reforms that have been
adopted since then to make the senate for efficient.  But as one recent study
concluded: "while filibusters can obstruct most of the Senate's work, procedures
that more closely resemble majority rule govern important parts of the agenda .
. . . critical areas of policymaking -- such as reconciliation bills -- are now
shielded from obstruction" (Eric Schickler, Disjointed Pluralism [2001], pp.
223-224).

Given this history, it seems likely that current obstructionism will only be
significantly curtailed if 1) additional areas of policymaking, including
relatively low-level appointments, come to be regarded as too important to
subject to minority obstruction (a bipartisan solution), or 2) a single party
gains strong and enduring majority status and as a result no longer feels it
necessary to tolerate minority obstruction (a partisan solution).  The second
possibility seems unlikely any time soon, and I don't hold out much greater hope
for the first.

Keith Whittington

"Scarberry, Mark" wrote:

>   Perhaps this theory that the entire Senate must vote on presidential
> nominees would also imply that the entire Senate must be consulted by the
> President before a nomination is made. The same Senate which must "consent"
> for a nominee to be confirmed is also supposed to "advise" the President.
>
> For example, I'd like to
> see filibustering Senators required to speak hour after hour and very
> publicly hold up the business of the Senate. The present practice of not
> moving forward with legislation unless 60 Senators support holding a vote on
> it comes near to making a supermajority the usual requirement in the Senate.
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