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From The New York Times:
EDITORIAL
Filibustering Nominees Must End
Published: January 28, 2012
The system for reviewing presidential appointments is broken. The Senate has a constitutional duty to provide advice and consent on the naming of judges and high-ranking executive branch officials. But the process has been hijacked by cynical partisanship and cheap tricks.
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This is not a new problem, but it has gotten intolerably worse and is now threatening to paralyze government, as Republicans use the filibuster to try to kill off agencies they do not like. The number of unfilled judicial seats is nearing a historic high.
It is time to end the ability of a single senator, or group of senators, to block the confirmation process by threatening a filibuster, which can be overcome only by the vote of 60 senators. We agree with President Obama’s call in the State of the Union address for the Senate to change its rules and require votes on judicial and executive nominees within 90 days.
This is a major change of position for us, and we came to it reluctantly. The filibuster has sometimes been the only way to deny life terms on the federal bench to extremist or unqualified judges. But the paralysis has become so dire that we see no other solution.
The president could be doing a better job of nominating judges expeditiously. Still, 85 federal judgeships are vacant, a number that has grown by 65 percent under Mr. Obama. Of those, the federal court’s administrators consider 31 to be “judicial emergencies,” which means other judges on courts with those openings have unmanageable caseloads.
Today, 18 judicial nominees wait for Senate votes even though they were approved by the Judiciary Committee, 16 unanimously. It can take a year for a nominee to receive a vote, an extraordinary hardship — since many cannot work while they wait — that threatens to reduce the pool of highly qualified candidates.
There are many examples. Goodwin Liu, a liberal law professor nominated last year to an appellate bench, was filibustered even though he was entirely in the legal mainstream, supported by conservatives including Kenneth Starr and Clint Bolick. His offense: He once dared to criticize Justice Samuel Alito Jr. as being too conservative.
Democrats used the filibuster to impose a two-year delay on President George W. Bush’s appointment of Jeffrey Sutton, a highly credentialed candidate, for a federal judgeship because of his doubts about Congress’s power to enact legislation protecting workers and consumers.
It is not just judicial appointments that are frozen. When Congress created a vitally needed Consumer Financial Protection Bureau as part of the financial reform law, Republicans in the Senate decided to block confirmation of a chief so the agency could not exercise its full regulatory powers.
This was not a matter of rejecting one choice for substantive reasons and asking for another. Republicans first told Mr. Obama that they would not confirm any head of the bureau unless he first agreed to gut its powers. Mr. Obama dropped his original choice, the highly qualified Elizabeth Warren, before she was named. Senate Republicans then blocked the confirmation vote for Richard Cordray, a strong pro-consumer leader and the bureau’s chief of enforcement. Mr. Obama gave Mr. Cordray a recess appointment, which means he will be able to serve only until the end of 2013.
Senators also use filibusters to block nonpolitical positions, like the administrator of the General Services Administration — to demand passage of a pet project, out of pique or, most troubling, as part of the Republicans’ electoral strategy to block anything Mr. Obama wants.
There was an attempt to deal with this seven years ago. A bipartisan group of 14 senators agreed to prevent judicial filibusters except under “extraordinary” circumstances after Republicans threatened to do away with the filibuster rule they now abuse so routinely. The center did not hold, and the agreement fell apart.
Under Mr. Obama’s proposal, during the 90-day period, hearings can be held, research conducted, objections raised, thunderous speeches given. But in the end, the senators will have to vote directly on the nominee, not hide behind the filibuster. This will require making confirmation hearings substantive events, not the Kabuki theater they are now.
We know it is risky. But the nation votes for a president, who needs to be able to appoint top officials and judges. The Senate needs to decide whether to give its consent or not. We can only hope that the president and the Senate will do that job responsibly, especially when both are controlled by the same party. Voters could then watch and reach their own judgments. And with fewer vacancies, government and the judiciary could do the nation’s work.
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