Ironically, the circumstances of the election have created a situation that is conducive to a potential compromise, if members of both parties had the courage and imagination to seize the opportunity. Republicans don’t have to choose between the 60-vote filibuster threshold of the past and the post-nuclear-option 51-vote reality of the present. The parties could negotiate a new process for confirming nominees with a new threshold for cutting off debate. Doing so could provide a badly needed boost to bipartisanship and put Senate confirmations on a much more rational footing going forward.
What is being lost in the political debate over who is right and who is wrong in the recent nomination wars is the Constitutional principle of checks and balances between the branches. On this question, Senate Democrats and Republicans should share a common, long-term institutional perspective. Both parties have reason to want to constrain Presidents of the other party. The whole point of advice and consent is to provide a check against unqualified or corrupt nominees. All 43 Presidents – even the great ones -- have nominated some clunkers. The next 43 Presidents will too. A 51-vote threshold weakens the Senate’s ability to weed out bad nominees and increases the temptation for future Presidents to nominate political cronies, unqualified campaign contributors, and ideological extremists.
On the other side of the ledger, the unrelenting use of the 60-vote filibuster threshold on nominations was damaging government operations by perpetuating vacant posts and deterring many good people from accepting appointments. Vacancies have real consequences for domestic policy implementation, the functioning of the courts, and national security. Senators who see nominations as a low-cost opportunity for all-out partisan gamesmanship are serving their constituents poorly.
What is needed is a new threshold that recognizes that attitudes and expectations about how nominations are handled have changed dramatically in the last 10 to 15 years. We will never go back to the time when filibustering a nominee was considered an unfair and obstructive maneuver. The best course is to incorporate the new reality into the Senate’s procedures in a way that comes closest to satisfying the twin Constitutional objectives of confirming judges and officials in a timely manner while checking the President.
The simplest change would be to establish a new Senate rule setting the vote requirement to overcome filibusters on nominations at 55 or some other number between 51 and 60 on which both parties can agree. Such a number is supremely negotiable. In my experience, the sweet spot is about 57. In most recent Congresses this would require the President to get the approval of between two and five members of the opposite party (and to hold on to the votes of the centrists from their own party).
Requiring an odd number may feel “untidy’ to some. But a 60 vote threshold is just as arbitrary as 53 or 55 or 57. The power of the deal would be grounded less in the specific number than in the bipartisan compromise itself. It would reflect a mutual judgment of the best balance between oversight of the President’s nomination power and fluidly staffing the government and courts.
A bipartisan deal would not have to be limited to setting a new threshold for cutting off debate on nominations. There are many elements to the advice and consent process that could be adjusted, strengthened, or reformed, including those related to committee consideration of nominations.
Ordinarily, rule changes are extremely difficult to implement in the Senate. But the issue of filibustering nominations is almost irrelevant for the next two years, because Republicans have the votes to stop nominations without a filibuster. In two years we will have a new President. With no clear political outcome foreseeable in 2016, the two parties have a relatively equal chance to hold the Presidency. Thus neither party is disadvantaged for at least two years and neither party knows what their status will be beyond that. This is a rare opportunity for the leaders of the Senate to address a question of good governance on its own merits without either party having to make an immediate sacrifice on advice and consent procedure.
Further, the middle ground between 60 and 51 is virtually unoccupied. Although historically, there have been some commentators who have advocated a 55-vote cloture threshold, the current debate has focused on the two polar options -- 60 vs. 51. Both parties could justify ending up somewhere in between without contradicting their previous stance. Both parties could contend that they got what they wanted, and nothing in such a compromise would require either party to accept primary blame for the nuclear option.
Some will protest that in light of the Democrat use of the nuclear option last year, any reforms undertaken now can be overturned later. Of course that is true. But this objection underestimates the norm that could be created by a true bipartisan compromise on advice and consent procedure. If a new procedure received majority backing in both parties it would not be as simple to overturn as pessimists might think. Critics also might worry that a less-than-60 cloture threshold on nominations may make it easier to lower the 60-vote cloture threshold that still exists on legislation. But given the precedent created by Reid and the Democrats, that could be done right now by a frustrated majority. Moreover, a bipartisan reaffirmation of the 60-vote threshold for legislation could be included in any agreement on nominations.
The justification of Hatch and Gray boils down to distrust of the Democrats to abide by a restored filibuster rule if they return to power in the Senate. Perhaps. But Republicans don’t have to worry about that for two years and maybe beyond. Senate leaders have the space to explore whether a new, bipartisan norm could be established on nominations that makes sense for the political era that we inhabit.
Dan Diller is the Director of Policy at The Lugar Center.
