By Jonathan Bernstein / Bloomberg Opinion
The process of confirming judges and executive branch officials has been dysfunctional for some time, and it’s getting worse. Republicans are largely to blame for a situation that has left hundreds of senior government roles vacant. But Senate Majority Leader Chuck Schumer and the Democrats have failed to do what they can to make things better.
By the end of this week, Joe Biden will have been president for 600 days. During that time, the Senate has confirmed 442 of his nominees for key jobs in the top echelons of government and 78 federal judges, or well under one per day. The problem? There are an additional 140 executive branch nominations and 62 judicial nominations either before the Senate or on their way there. That’s 202 pending nominations, and there are only about 120 days remaining until the 118th Congress is sworn in on Jan. 3.
And that isn’t even counting the combined 119 vacancies for which no one has even been nominated. Those jobs remain unfilled in part because Biden hasn’t moved as aggressively as he could. But a bigger reason is the Senate confirmation process itself, which knocks a lot of perfectly good candidates out of the nominee pool because they aren’t willing to subject themselves to intrusive vetting or to suffer through ever-increasing amount of time nominees spend in limbo before finally being able to start the new job.
These failures add up to hundreds of empty desks: either positions entirely unfilled, or jobs where someone fills in on an acting basis. That means trials postponed, decisions not made and the nation’s business not completed.
Both parties are to blame for some of the problems, such as excessive vetting, which has been going on for years. But the most pernicious source of delays are the parliamentary maneuvers employed by Republicans in the years when they have been the minority party in the Senate, starting during Barack Obama’s presidency. Democrats copied the strategy during Donald Trump’s presidency. (When in the majority, Senate Republicans have simply refused to even bring nominations by a Democratic president to a vote, no maneuvering necessary.)
Since 2013, the minority party can no longer use a traditional Senate filibuster — a tactic requiring 60 votes to end debate and proceed to a vote — to defeat a single nomination. But Senate Republicans have managed to bog down the process by requiring individual votes on most nominees, rather than approving them in batches, as used to be customary. Other unnecessary procedural votes further gobble up scarce Senate time, a collection of methods that I think of as a blanket filibuster.
It used to be the case that the Senate would quickly confirm all remaining non-controversial nominations before beginning an extended recess. That meant that when the Senate returned from its August recess in 2002, during President George W. Bush’s second year in the White House, there were fewer than five full pages of nominations (with about five to eight nominations per page) ready for a floor vote on the Senate executive calendar, even with a slim Democratic majority in the Senate. But when the Senate returned this week, there were 18 pages of nominations.
Since it’s up to the majority party to schedule the order in which business is conducted, the most urgent positions, such as circuit court judges or cabinet nominations, get approved. It’s the second, third and fourth-tier positions that remain in limbo. It’s very hard to see what this accomplishes for Republicans, given that no one is going to vote against Democratic senators or a Democratic president because Republicans successfully filibustered a bunch of no-name assistant secretaries of obscure agencies. But they’re doing it nonetheless, and it’s damaging, because collectively all those empty desks add up.
Which gets to Schumer and the Democrats. Republicans deserve the blame for the floor logjam, but Schumer has been content to just confirm the most urgent picks and to let the rest wait. He has apparently let people know, for example, that the Senate is going to act on judges right up to the election recess, and let executive branch nominees wait until the post-election lame-duck session.
That’s a reasonable choice given current rules and procedures, but a much better move would be to change those procedures to end the blanket filibuster. There are a number of ways they could do that, but the goal would be to reduce the amount of time the Senate spends on each nominee – for example, by bundling nominations together and requiring only a single vote on them.
In the long run, it’s the fault of the entire Senate for failing to make the process workable. Senators should want influence over the executive branch, and the nomination process gives them that in theory, but in practice a process that just doesn’t work reduces that influence to the benefit of the president, interest groups and the bureaucracy itself.
Fixing the confirmation process — getting the amount of vetting just right, for example — could be difficult. Fixing the logjam on the Senate floor should be relatively easy. Schumer and the Democrats should get it done, and it probably wouldn’t hurt for Biden to call out Republicans for foot-dragging and to urge Democrats to act.
Jonathan Bernstein is a Bloomberg Opinion columnist covering politics and policy. A former professor of political science at the University of Texas at San Antonio and DePauw University, he wrote A Plain Blog About Politics.