Recess Appointments and Filibuster Reform

I’m delighted that President Obama used his recess appointment power for several key administration posts (and the government printer – WTF?).  He should do it more often, and I suspect will have occasion to if Senate Republicans continue the most egregious abuse of the chamber’s rules in US history.

But there is a way out of this mess, which really should not be a partisan issue — really.  That is to end the filibuster for executive branch appointments.  Many Senate Democrats are pushing for more far-reaching rules, such as ending the “silent filibuster” (which I also support), but getting out of the confirmation mess really is a no-brainer, and hasn’t received the attention it deserves as a common-sense reform.

Alexander Hamilton said it most succinctly in Federalist 68: “the true test of a good government is its aptitude and tendency to produce a good administration.”  The ability of individual senators to stymie specific executive branch nominees significantly undermines any President’s capacity to develop sound administration.  That was in fact probably the Republicans’ goal, although many of the filibusters were just using positions as bargaining chips.

Most importantly, though, executive branch filibusters are relatively negligible in terms of the parties achieving their policy goals.  One could at least argue that the minority should be able to filibuster, say, President Palin’s nomination of Joe Miller or Sharron Angle to the Supreme Court.  If she wants them as Interior Secretary, that would be a horrific policy decision, but it’s a decision that can be reversed as the voters throw her out of office.  Yes, there are consequences to terrible executive officials, see, e.g., Donald Rumsfeld and Alberto Gonzales, but they are temporary.  Justice John Bolton would have been a disaster; former UN Ambassador Bolton is busy foaming at the mouth on Fox News and not doing anyone any harm.  (In fairness, Gonzales was actually a pretty decent state judge).

If there is a truly bad presidential appointment, any future Democratic minority should be able to get enough Republicans to join them and reject the appointment outright, although I admit that the GOP’s flight from reason makes this less likely.

Ironically enough, failure to move on this issue will in fact provide less accountability for the executive branch officials.  Presidents will start using more and more recess appointments, avoiding hearings and scrutiny altogether.  Perhaps that’s what the royalist faction of the GOP wants, but the rest of us should not have to put with it.

We’ve had lots of talk of late about the decline of the American Empire.  Maybe the US government can’t police the world, and if the Republicans have their way, it won’t even be able to run the country.  But it should be able to run itself.


  1. Brett Bellmore says

    I agree: The filibuster in essence represents a refusal of the Senate to act on a bill or nomination, rather than it's acting negatively. While the Senate has no particular obligation to act on any piece of legislation, as legislation is the Senate's own business, with nominations the Senate is interacting with a co-equal branch of government. And owes that branch a response. That response may be a thumbs down, but a response is, non the less, owed.

    That's why I'd suggest that we amend the Constitution, so as to treat Senate inaction on nominations in a manner similar to Presidential inaction on legislation: Give the Senate some finite period time to bring the nomination to an up/down vote, and if this does not happen within the specified period, the nomination is to be regarded as confirmed. Unless the Senate's session ends before the clock runs out; We don't want Presidents to have an incentive to dump nominations on the Senate at the last minute.

    But, of course, until the Constitution is so amended, the Senate is, as a legal matter, entitled to ignore nominations if it wishes. Whether or not it should.

  2. Mrs Tilton says

    But, of course, until the Constitution is so amended, the Senate is, as a legal matter, entitled to ignore nominations if it wishes, so long as that is what the rules of the Senate, which the Senate itself may revisit at the beginning of each new congress, permit.

    FTFY. Now if only there were some way, short of constitutional amendment, that procedural dysfunction in the Senate could be fixed.

  3. Kenneth Fair says

    (In fairness, Gonzales was actually a pretty decent state judge).

    If by "pretty decent state judge" you mean "a judge committed to ruling in favor of the oil barons and the homebuilders, who fund the Republican Party of Texas," then I guess that's accurate.