By Bill Galston
On Monday, the Senate confirmed Paul Watford's nomination to the 7th seat on the Ninth Circuit Court of Appeals. The nomination seemed vulnerable to a filibuster but eventually succeeded by a vote of 61-34.
Yet Watford’s confirmation is unfortunately the exception that proves the rule.
The 5th seat on that same court has been vacant for 2699 days, or since 2004. Obstructionist tactics increasingly prevent a vast number of critical judicial and other presidentially appointed positions from being confirmed—so much so that many potential nominees refuse even to subject themselves to the process.
The most powerful of these obstructionist tactics is the filibuster, which is used by the minority to force the majority to reach a 60-vote cloture threshold. Often, the simple threat of the filibuster stymies a nomination from proceeding.
As a result, nominees languish, and positions remain unfilled. Today, the average time between an appointee’s nomination and confirmation is more than 200 days. The longest time a judicial nominee has spent pending without a hearing is the case of Thomas Ludington, a Bush-era nominee for a judgeship in the Eastern District of Michigan. Nominated on September 12, 2002, he was held up without a hearing until May 2, 2006, and was only confirmed on June 8 of that year, a full 1,365 days after his initial nomination.
According to the Alliance for Justice, nearly half of all Americans -- roughly 150 million -- live in districts or circuits with a vacancy that needs filling, yet has a nominee available.
In fact, one in ten federal judgeships currently remain vacant.
The number of seats where the caseload has become so backlogged that the government deems a court to be in a state of emergency has risen by 70%, from 20 at the beginning of Obama’s term to 33 today.
We cannot continue to allow the broken rules of Congress to exacerbate the gridlock and inefficiency they have caused in this process.
This is why No Labels (www.NoLabels.org) has included both filibuster reform and a 90-day up-or-down vote nominations threshold as part of its Make Congress Work! action plan.
To speed up confirmations, our reform would require a presidential nomination be confirmed or rejected within 90 days of receipt by the Senate. If a nominee is not confirmed or rejected within 90 days, he or she would be confirmed by default. This proposal was endorsed by President Obama at this year’s State of the Union address and by The New York Times editorial board.
No Labels’ filibuster fix has two parts:
First, require real (not virtual) filibusters. If senators want to halt action on a presidential nominee or a bill, they actually have to take the floor and hold it through sustained debate.
Second, the Senate should end filibusters on motions to proceed -- motions that determine whether senators can even debate legislation. Filibusters should not be able to prevent a bill from reaching the floor for debate in addition to preventing legislation from passing.
These are simple, common sense fixes that would serve both parties and, more important, the American people, who have a right to judges giving speedy trials, ambassadors working in their interests abroad, and agency heads looking out for things such as their safety, education, and justice.
And in fact, in spite of the current legislative gridlock, this year presents an ideal opportunity to implement both of these reforms.
Right now, no one knows who will control the Senate next year. This means neither side knows who would benefit from changes to the filibuster or the nominations process -- and both sides clearly see the downside of the status quo.
The political climate is ripe for reform. It’s time for the Senate to take advantage of this opportunity. We have no time to waste.
Galston is co-founder of No Labels and a senior fellow at the Brookings Institution.