Sequester the Filibuster
Last Friday, the White House withdrew Caitlin Halligan’s nomination for the D.C. Circuit (at her request). This sorry incident underscores just how broken our confirmation process has become. Halligan is eminently qualified (and not even that liberal). Vacancies in the Third Branch continue to pile up and confirmations remain stalled.
What’s to be done?
The first step – as always – is to acknowledge that we have a problem. And it’s not just a Republican problem. Democrats played similar (albeit less successful) games during the George W. Bush years.
The institutional problem is that when in control of the Presidency, the dominant party talks a lot about how nominees are entitled to an up-or-down vote. But once they lose the Executive Branch, the same folks (GOP or Dem) change their tune.
The solution to the confirmation stalemate lies in another unpopular Congressional measure: the sequester. No really. I’m serious. Legislative entrenchment is the key to solving the judicial confirmation fiasco.
The Senate should modify Rule 22 (the cloture rule) to mandate that, beginning January, 2018, if more than five appellate court vacancies exist, the Senate will proceed to up-or-down votes until fewer than five vacancies remain. In other words, sequester the filibuster.
The new rule would be politically neutral: we don’t know who would be in charge of the presidency or Senate in six years. And it wouldn’t destroy the cherished filibuster – it would only modify it, allowing Senators to filibuster some nominees who were truly objectionable, as long as they confirmed others. Of course, this won’t solve the current problem, but at least it will chart a politically neutral framework for getting us out of the mess we’ve created.
The sequester might be unwise and unpopular, but it has shown that legislative entrenchment can sometimes ‘work.’ If there’s to be a silver lining to these cuts, let it be an end to our broken judicial confirmation process.
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