I have been running a series over time of how the American political system differs from the naive conception of Democracy that we are taught in high school. They have all been negative. Finally we have one partial restoration of Democracy in the Senate with respect to ending filibusters over affirming the Presidential nomination of judges and administration appointments. Previous to Obama, the senate has rarely allowed a single Senator to block such an appointment. However, since Obama this has been used regularly against his nominations and appointments. The latest was Minority Leader Sen. Mitch McConnell stating that he would not approve any appointments until he got his way on many issues. This is not the usual objection to something in the appointees’ qualifications. The courts are usually balanced by both parties being able to fill judgeships during alternating administrations. This was stopped for Obama’s appointees. The Democrats really had no option but to use the poorly named “nuclear option” and restore a democratic vote of 51 to end a filibuster for appointments.
Note that this does not apply to the nomination of a Supreme Court Justice, which still has the rule of requiring 60 votes. It also does not apply to the hundreds of bills that are blocked by the 60 vote filibuster rule also. Remember, it only takes one Senator to use the filibuster to block a vote on a bill, and they do not have to even actually filibuster, they just have to state that they want to do it. The 60 votes are then needed to override the filibuster. In the very old days, they actually had to filibuster, and after a few hours it would be all over. Now days, the request for a filibuster lasts forever.
The amazing count by the Washington Post is that there are 50 judicial nominees and 186 executive nominees awaiting appointment. The executive nominees have been pending an average of 140 days. 85 of these are for cabinet level agencies. 34 are Ambassadors! Is there any doubt that the government will run better with these positions filled?
The first vote after the rule was set aside for appointments, the vote was 55 to 43 for, a spread of 12%, not a mere majority of 51.
There is nowhere in the Constitution that this rule is mentioned, or the number 60 is set. It just falls under the clause in the Constitution that the Senate can set its own rules.
The threats by Sen. Mitch McConnell to retaliate in force sort of indicate that when the Republicans take power some day he would have probably abolished the rule of 60 for all votes to end filibusters anyway. If he doesn’t like the democratic simple majority rule, he could simply restore the rule of 60 next time the Republicans rule the Senate. The fact that the House no longer automatically votes to keep the government running or to raise the debt ceiling, but holds them hostage to force unrelated policies, shows that no holds are barred by the Republicans.
The Washington Post also points out that many appointments can still be halted by the approving committees not meeting and voting with a quorum. A large number can be delayed for a day by a long debate on the floor. Such a visible tactic for well qualified judges and appointees won’t stand well with the general public, who already sees the Congress as ineffective and dominated by political squabbling.
There was no need to return the vote to end filibusters on bills to a simple majority, since the Republican House would not approve them anyway. Even bills that are approved by the Senate with more than 60 votes often do not end up being submitted to a House vote, or being passed by the House. The Hastert rule of requiring a majority of only Republican support is often invoked before submitting a bill to a House vote. Again, this is not in the Constitution.