Recess Appointments and Filibuster Reform

Ending filibusters of executive branch appointments is such an obviously a good idea that no one is pushing it.

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.

Author: Jonathan Zasloff

Jonathan Zasloff teaches Torts, Land Use, Environmental Law, Comparative Urban Planning Law, Legal History, and Public Policy Clinic - Land Use, the Environment and Local Government. He grew up and still lives in the San Fernando Valley, about which he remains immensely proud (to the mystification of his friends and colleagues). After graduating from Yale Law School, and while clerking for a federal appeals court judge in Boston, he decided to return to Los Angeles shortly after the January 1994 Northridge earthquake, reasoning that he would gladly risk tremors in order to avoid the average New England wind chill temperature of negative 55 degrees. Professor Zasloff has a keen interest in world politics; he holds a PhD in the history of American foreign policy from Harvard and an M.Phil. in International Relations from Cambridge University. Much of his recent work concerns the influence of lawyers and legalism in US external relations, and has published articles on these subjects in the New York University Law Review and the Yale Law Journal. More generally, his recent interests focus on the response of public institutions to social problems, and the role of ideology in framing policy responses. Professor Zasloff has long been active in state and local politics and policy. He recently co-authored an article discussing the relationship of Proposition 13 (California's landmark tax limitation initiative) and school finance reform, and served for several years as a senior policy advisor to the Speaker of California Assembly. His practice background reflects these interests: for two years, he represented welfare recipients attempting to obtain child care benefits and microbusinesses in low income areas. He then practiced for two more years at one of Los Angeles' leading public interest environmental and land use firms, challenging poorly planned development and working to expand the network of the city's urban park system. He currently serves as a member of the boards of the Santa Monica Mountains Conservancy (a state agency charged with purchasing and protecting open space), the Los Angeles Center for Law and Justice (the leading legal service firm for low-income clients in east Los Angeles), and Friends of Israel's Environment. Professor Zasloff's other major activity consists in explaining the Triangle Offense to his very patient wife, Kathy.

5 thoughts on “Recess Appointments and Filibuster Reform”

  1. 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. 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. (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.

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