Judicial Nomation Reform?

I think the strongest case for protection of minorities in the Senate is in confirmation of judges. It’s a lifetime appointment; we’re now being governed in part by decisions made thanks to elections in the 1980s and 1990s (and, for some appeals level judges, even earlier). One can certainly make the case that even a concurrent majority in both the presidency and the Senate should not be sufficient to automatically deserve to get their way.

And yet: judges have to be confirmed. Stalemate has to be avoided. Even the strongest supporters of the filibuster agree, I think, that a situation in which the minority party has the ability to simply shut down the confirmation process across the board isn’t the way to go. At the extremes: a Senate, even a Senate majority, which insists it will only confirm a particular choice and reject all others would be flipping the Constitutional procedure on its head, and it’s even worse if a minority of 42 or 43 or even 49 Senators is able to make that demand.

So the question is exactly how Senate minorities should have a say. I’ve been saying that I’m fine with continuing the current filibuster/cloture rules, but perhaps with a smaller supermajority needed (I also think there should be no holds at all: once a nominee clears Judiciary, they get a set vote at a time certain. But put that aside for now).

Matt Glassman, however, proposes something different that I find intriguing: replace unlimited debate and cloture with time limits. Long ones. He suggests (and I’m cleaning up from twitter): “If I were King of Senate, I would immediately switch to long limit on debate (say 30 hours) for all nominations –judicial or executive branch.” And “You could have really long time limits. If the majority wanted a single judge that bad, tying up the Senate floor for say, 150 hours, would be very costly.”

I find the idea…intriguing. It wouldn’t imply any romantic ideas about a talking filibuster; presumably it would involve a set period in which both sides would have a normal opportunity to speak, with a fixed time limit. No cots. No recipes and phone books (or, as I’ve argued, reading from the blogs and other easily available talking points). It would impose costs on the majority which they would be willing to bear if they are intense enough, which fits well with my feeling that intense majorities should be protected.

On the other hand, I’m not sure how one would set the incentives properly for the minority. We don’t want them to exercise their full rights to delay everything, right? We do want the minority to be protected (in some fashion) on judges they strongly object to; we don’t want them to use the rules to delay in cases where they have no objection to a judge, thus forcing the majority to choose between the (non-controversial) judge and a legislative agenda.

Remember, all of this from my point of view is from the perspective that minority party Senators would mostly be glad to take to the Senate floor and recite talking points, so that forcing them to talk per se doesn’t really impose much of a cost, and simple attrition can’t work (unless you set up the rules so severely that you’re basically establishing a physical challenge that cannot be met. That’s possible, but it strikes me as a horrible way to run things; if that’s what you want to do, just make the effect the rules and skip the drama).

So: I don’t know! I’m open to suggestions. The challenge: beginning from a premise that we do want to protect intense minorities, but also that we want to empower intense majorities, how do we design a system for judicial nomination confirmations? I’m not satisfied with any of the proposals out there, including, really, my own. I strongly believe that judges are different from executive branch nominations, and both are different from legislation. But what’s the best way to do it?

My instinct is that large time limits can be part of a package of judicial nomination reforms, but not the whole thing. But I really don’t know.

[Cross-posted at A plain blog about politics]

Jonathan Bernstein

Jonathan Bernstein is a political scientist who writes about American politics, especially the presidency, Congress, parties, and elections.