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Dellinger Says Exec Nominations Deserve Vote:

Former Clinton Justice Department official Walter Dellinger had an op-ed in yesterday's WSJ arguing that all Executive Branch nominations deserve an up-or-down vote in the Senate.

Whether Republicans or Democrats are in office, the loyal opposition should not frustrate a president's ability to execute the powers of his office by denying an up-or-down vote to executive-branch nominees.
He made a similar argument in 2001 when he sought (somewhat unsuccessfully) to discourage Senate Democrats from blocking Bush nominees. As he wrote then and now: "If a president cannot promptly place his chosen people in key offices, he can hardly be held fully responsible for the missteps of the administration." I agree. While I may disagree with Dawn Johnsen or Harold Koh on various matters, I believe each should receive a prompt vote following a fair examination of their respective records -- and that each should be confirmed.

While Dellinger focuses on the fact that many Senate Republicans are on record opposing filibusters or other obstruction of executive branch nominees, he also notes that Senate Democrats blocked votes on several Bush nominees to the executive branch, including John Bolton, Otto Reich, and Eugene Scalia. The one qualification I would make to Dellinger's argument is that he seems to suggest that the only principled position for Republican Senators to take is one of unilateral disarmament. While I agree that tit-for-tat has produced unnecessary escalation in nomination battles -- for both executive and judicial nominations -- I also suspect that, as a practical matter, Senate Democrats are unlikely to forswear resort to their prior tactics absent some threat of retaliation. Just as it took several intrusive investigations of the Clinton Administration to sour Democrats on the independent counsel law, I fear it may take the threat of GOP obstruction to convince Democrats to accept a new norm on the treatment of Presidential nominees to the executive branch. I don't want either party to filibuster executive branch nominees, but I understand why one party would be reluctant to forswear this option unless the other would do the same.

Larrya (mail) (www):
When Rs and Ds don't play well together it's too bad there's no one to put their toys on top of the refrigerator. Worked like a charm with my children.
4.21.2009 10:57am
cboldt (mail):
-- I fear it may take the threat of GOP obstruction to convince Democrats to accept a new norm on the treatment of Presidential nominees to the executive branch. --
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The current norm, ably defended by the Democrats, is that Senate rules (and the very fabric of the US Constitution) intend to give the power of obstruction to the minority party. Not only do the Democrats accept this norm, they endorse it.
4.21.2009 11:10am
paul lukasiak (mail):
s, he also notes that Senate Democrats blocked votes on several Bush nominees to the executive branch, including John Bolton, Otto Reich, and Eugene Scalia.
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apples and oranges here. In those cases, either the nominees were unable to get a majority of the senate committee to send their nomination to the floor (Bolton) or the majority leadership refused to take the steps necessary to bring a nomination to a vote. In these cases, there is at least the "fig leaf" of democracy through the imposition of the "will of the majority".

What the GOP is doing is trying to control the nomination process as a minority party....
4.21.2009 11:51am
cboldt (mail):
-- either the nominees were unable to get a majority of the senate committee to send their nomination to the floor (Bolton) --
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John Bolton's nomination was reported out of committee. Subsequent renominations were held in committee. Agree with your comment that the inaction on subsequent nominations was at the GOP's absence of initiative. Same for a handful of Circuit Court nominees.
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Floor Action: May 18, 2005 - Placed on Senate Executive Calendar. Calendar No. 103. Subject to nominee's commitment to respond to requests to appear and testify before any duly constituted committee of the Senate.
Floor Action: May 26, 2005 - Cloture not invoked in Senate by Yea-Nay Vote. 56 - 42. Record Vote Number: 129.
Floor Action: June 20, 2005 - Cloture not invoked in Senate by Yea-Nay Vote. 54 - 38. Record Vote Number: 142.
4.21.2009 12:00pm
cboldt (mail):
-- What the GOP is doing is trying to control the nomination process as a minority party... --
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Exactly right, and as the Democrats have aptly asserted, this is by design on the US Constitution and Senate Rules.
4.21.2009 12:05pm
Just an Observer:
With some nominations the mechanism of opposition is not the filibuster (or what passes for a filibuster these days, just forcing a cloture vote) but Senate traditions such as blue slips and holds that operate below the radar.
4.21.2009 12:10pm
trad and anon (mail):
I agree that the President should get a high degree of deference in appointing executive branch officials. The whole point of executive branch officials is that they're supposed to implement the President's policies. You can't have the President and the Secretary of State at loggerheads about our foreign policy all the time. Unless the nominee is patently unqualified, corrupt, overtly sexist or racist [1], or ideologically unacceptable for reasons that go far beyond "this person supports the President's policies, which I strongly oppose" [2], they should be accepted by the Senate.

Conversely, I think the Senate should be willing to shoot down judges on much thinner grounds, since the whole point of federal judges is to be independent. The President has the right to appoint judges based in part on philosophy/ideology, and the Senate has every right to give or deny its advice and consent on the same grounds.

[1] No, "Supports/opposes affirmative action," "supports laxer/stricter immigration laws," and "supports/opposes abortion" do not count.

[2] See #1 above.
4.21.2009 2:07pm
Thales (mail) (www):
I'm fine with filibusters, I just want them to be old-school filibusters, not the mere threat. Harry Reid should make the obstructionists embarrass themselves and stay up all night with the phone book, if they don't have any good or convincing (to a majority of their colleagues) reason for their opposition.
4.21.2009 2:41pm
Thorley Winston (mail) (www):
I'm fine with filibusters, I just want them to be old-school filibusters, not the mere threat. Harry Reid should make the obstructionists embarrass themselves and stay up all night with the phone book, if they don't have any good or convincing (to a majority of their colleagues) reason for their opposition.


I think the reason that Harry Reid hasn't gone along with your suggestion, is because then he'd need to get every Democratic Senator to be on call for the duration of the filibuster to vote on cloture while Republicans would only need to keep one or maybe two of their Senators available. Right now the current system is actually less burdensome to the majority party than the traditional filibusters were.

As far as what to talk about during a "traditional filibuster," I think it would be far easier during a protracted (and televised debate) for the minority party to highlight all of the problems with a nominee than it would be for the majority party to make an argument for that nominee's passage. Thanks in no small part to organized opposition groups, damaging information is far more plentiful and readily available than it was during the days where a Senator would need to "read the phone book" just to have something to say during a filibuster.
4.21.2009 3:13pm
cboldt (mail):
-- I think the reason that Harry Reid hasn't gone along with your suggestion, is because then he'd need to get every Democratic Senator to be on call for the duration of the filibuster to vote on cloture while Republicans would only need to keep one or maybe two of their Senators available. --
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That's not the reason. Cloture is a device to surmount delay, not implement it. Cloture has a time-definite schedule, and once invoked, has the attribute of limiting the time available for each Senator to hold the floor. At the same time, filing a cloture motion is a volitional act by the majority.
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At any rate, the "snap" or "surprise" vote theories are based on an incorrect impression of the Senate works. The Senate (and any responsible deliberative body) endeavors to schedule votes so that each member has an opportunity to weigh in.
4.21.2009 3:27pm
Brian G (mail) (www):
All nominees deserve an up or down vote and that is my final word on the issue. Of course, I reserve the right to change my opinion at the precise moment Republicans are back in power.
4.21.2009 4:43pm
Bob from Tenn (mail):
One of the interesting results from game theory, in a multiple iteration game, is that to get people to follow the norms, a retaliation is required for violations. Once the norms are again followed by the violators, than retaliations should cease.
4.21.2009 4:50pm

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