Minority Leader Mitch McConnell is talking about restoring the 60-vote filibuster on nominations if Republicans win a Senate majority this year. I very much doubt he will follow through, but if he is looking for a truce in the filibuster wars, here are my suggestions for a deal that would make sense for both sides. Not after November, but right now.
To succeed, however, it would require Republicans to accept that they aren’t going to be able to block high-priority nominations, at least when majority Democrats are united.
Here’s what a compromise could look like:
On executive-branch nominations, no change. Keep simple-majority confirmation. Filibusters on these nominations were almost unheard-of until Barack Obama became president. And for good reason: Presidents should be entitled to their choice of personnel except in rare cases.
On judicial nominations, a middle ground is available: Peg the number of votes required to defeat a filibuster to the size of the majority. Or, rather, make the number of votes required to sustain a filibuster equal to the size of the minority plus one (in a 55-45 Senate, it would take 46 votes to defeat cloture). Democrats would be able to confirm a nominee as long as they are united, and Republicans would be able to make that an uncomfortable vote.
On post-cloture time: It makes sense to limit the amount of time before a vote is held. But the specific mechanism chosen during this Congress (reducing post-cloture time for relatively minor positions) is the wrong way to go. Instead, the 30-hour wait between cloture and a vote should be restored for all nominations, but it should be subject to a use-it-or-lose-it rule. That would allow Republicans (or any senator) to increase the cost of confirmation -- 30 hours of floor time is a big deal. It also would mean that if no one cares enough to impose that cost (or, more to the point, to make a credible threat of imposing it), then nominations without opposition could be confirmed relatively quickly.
These changes would allow Democrats to reduce or end the foot-dragging that Republicans have used this session on most nominations. As for Republicans, under current circumstances, they have hardly any chance of stopping a judicial nomination; the most they can do is delay it a bit. But under my proposal, it’s at least possible that they could foil the nomination of one or more “extremist” judges, if all they need to do so is to persuade one Democrat. If they fail, at least they could claim that each Democrat was the key vote who put those judges over the top.
OK, this wouldn't mean big gains for either party. But it could be beneficial for individual senators. Partisan confirmation wars are terrible for lawmakers, because it reduces them to mere party-line votes. As I’ve argued, the current situation makes individual holds useless (here's a somewhat different view from Josh Huder). Cutting a deal now might make the Senate a lot more stable, and halt the slide towards a fully partisan, House-like chamber. And that would be good for every senator who wants influence.
None of this is likely to happen. I don’t think Republicans want a deal, which is why they brought upon themselves the majority-imposed reform by blockading three D.C. Circuit Court seats. And I think at least half the Democrats don’t want a deal, either. But we would have a better Senate if they could agree to something like this.
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