Kurt Mitman | Pro reforma
Sorry to be Kurt | The Senate needs to change its rules to speed up the confirmation process
February 1, 2013, 1:01 am·
Sorry to be Kurt
Eighty-six of 874 federal judgeships sit vacant.
Numerous more positions in the executive branch remain open. These vacancies are either awaiting nomination by President Obama, or confirmation by the Senate.
The arcane rules of the Senate have made it increasingly difficult for Obama to fill judicial and other federal vacancies.
Under the Constitution, the president possesses one way to skirt the Senate confirmation: using recess appointments. When the Senate is in recess or not in session, the president can appoint someone to office for the remainder of the Senate term.
Last week, however, the United States Court of Appeals for the District of Columbia Circuit invalidated President Obama’s recess appointments to the National Labor Relations Board.
The president’s appointments to the NLRB hadn’t actually occurred during a Senate recess. The Senate was technically in session — a pro forma session — held specifically to prevent recess appointments.
The Obama administration had argued that such a session where no business takes place and only one senator shows up for a few minutes a day constitutes a recess for the purpose of federal appointments.
The Appeals Court disagreed, saying that such pro forma sessions do count as the Senate being in session. However, the court went further. It went on to say that recess appointments can only be made when the vacancy also becomes open during the recess. Empirically, the president has been able to fill any federal vacancy during a recess.
Since nowadays the Senate is rarely in recess, the Appeals Court effectively eliminated the president’s power to make recess appointments.
The ruling is at odds with a 2003 ruling regarding recess appointments made by an en banc 11th Circuit Court of Appeals. The ruling is no doubt headed to the Supreme Court.
If the Supreme Court upholds the Appellate Court’s ruling, it will restrict executive power and create a legal mess at the NLRB and most likely at the Consumer Financial Protection Bureau, whose director, Richard Corday, was also appointed during a pro forma session.
The Supreme Court should, however, uphold the lower court’s decision.
When the Constitution was written, there was a greater need for the flexibility of recess appointments. Senators couldn’t fly back to Washington on a few hours’ notice if the Senate was called back in to session.
The size and scope of government has also increased to the point where missing an individual post does not create the same absence that it once did.
Today the president and the Senate should be able to work expediently together to fill vacancies in both the executive and judicial branches of government.
We know how that’s worked in practice, however. “The Greatest Deliberative Body on Earth” (please suppress your laughter) has become a joke.
By effectively eliminating the president’s ability to circumvent the Senate, the Supreme Court would force our government to stop being dysfunctional.
While taking away the president’s power might lead to complete paralysis in terms of appointments, such a paralysis would force the Senate to finally change its arcane rules.
Senate rules require unanimous consent to open debate on a topic — this allows individual senators to put “holds” on nominees or legislation unless a 60-vote majority can be obtained.
Lowering this standard by only requiring 40 votes to bring an appointment vote to the floor would greatly address the current backlog.
The Republicans have prevented committees from holding meetings after 2 p.m., based on a rule that was originally written to allow time for senators to ride their horses back across town before it got too late.
The Democrats are equally to blame for the obstructionism, as it is Senate Majority Leader Harry Reid, who came up with the idea of using pro forma sessions to block recess appointments during the final two years of Bush’s last term.
There are risks involved in making it easier for the majority to get things done in the Senate, but there are also risks to getting nothing done.
The time has come to bring the Senate to the 21st century and for senators to actually do their jobs instead of just being obstructionist.