End the Filibuster: Restore Democracy

(Editor's Note:  here is the first of what we hope will be many posts from Matthew Fairley, Esq., vice-chair of the Brooklyn GOP's Law Committee and contributor to Brooklyn GOP Radio!)

If one reads the Constitution, the process by which the President appoints ambassadors, cabinet members, judges and other federal officers seems quite simple.  Art. II, Sec. 2 of the constitution states:

[The President] shall nominate, and by and with the advice and consent of the Senate, shall appoint ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers of the United States, whose appointments are not herein otherwise provided for, and which shall be established by law

On its face it implies a two-step procedure.  The president makes a nomination, and then the Senate votes to approve or deny that nomination.  Unfortunately, in recent years that has not been the case, with Senate minorities of both parties filibustering presidential appointments to score political points.  A Brookings Institute study shows that filibusters have increased from 17 in 1980 to 74 at the close of the most recent Congress, spiking as high as 105 in the Congressional session ending in 2008.[1]  Though Republican minorities in the three most recent Congresses have set records, Democratic minorities increased filibusters each year they were in the minority.  

Though some would say the filibuster is an important procedural safeguard against presidential appointment of poor candidates, in reality it is dangerous, undemocratic and cowardly.



Dangerous, because the current practice has left many key positions unfilled, including 38 federal judgeships,[2] and 43 unfilled ambassador positions (including, incredibly, Russia, a somewhat important country to have relations with at the moment).[3]  Undemocratic, because a minority of Senators (and, yes, I know at the moment the minority is my own party) is imposing its will on the country, despite its party having won neither the Presidency nor the Senate.  Cowardly, because the filibuster is anonymous.  No senator need stand up and put their opposition to a nominee on the record.  

And so I propose the following amendment at Art. II, Sec. 2: 

[The President] shall nominate, and by and with the advice and consent of the Senate, shall appoint ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers of the United States, whose appointments are not herein otherwise provided for, and which shall be established by law.  The Senate shall vote to either confirm or deny the nomination within ninety (90) days of its receipt from the President.  If the Senate does not vote on the nomination within ninety (90) of the receipt of the nomination, the nominee shall assume office as if the Senate had consented to the nomination.

This amendment will alleviate the issues outlined above by maintaining the Senate’s role in confirming appointments, but removes the Senate’s discretion to act. Should the Senate fail to act, it is the same as approval and the president’s nominee takes office as if approved.  Accordingly, a minority cannot prevent a nomination simply through parliamentary procedure.  This will also prevent gridlock in the event the President and Senate majority are from different parties.  The opposing party may still prevent nominees from taking office and provide a check and balance on the President, but they must put their opposition on the record and cannot prevent appointments by inaction.

I am sure many will accuse me of being a RINO as this proposal, if in effect today, would allow President Obama, with the help of his allies in a Democrat controlled Senate, to fill the federal government with liberal judges and bureaucrats that would advance a left-wing big government agenda.    To that I say, first, this proposal is non-partisan and will protect the prerogatives of a Republican president when we take back the White House.  Second, I say: Good!  Say what you will about the President, but the fact is he won the election, and his allies won the control of the Senate (with an assist from some criminally inept Republican Senate candidates *cough* O’Connell *cough* Akin).  Elections have consequences, and the consequences of the most recent elections are that the American people, bless their hearts, wanted a Democrat in the White House and Democrats in control of the Senate.  If Republicans want to control appointments, I’m sure the founding fathers would have two very succinct words for our party: Win Elections.  Until you win elections, you shouldn’t have the power to subvert the process.

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[1] See Brookings Institute study of Cloture votes at: http://www.brookings.edu/blogs/brookings-now/posts/2013/11/chart-recent-history-of-senate-cloture-votes-to-end-filibusters

[2] Most of these judgeships are left unfilled because of an even more undemocratic practice, opposition by home state Senators, who traditionally have the (unwritten) power to block nominations in their home states.  See http://www.huffingtonpost.com/2014/06/04/obama-judicial-nominees_n_5439100.html.

[3] See http://takingnote.blogs.nytimes.com/2014/07/17/why-doesnt-the-united-states-have-an-ambassador-in-russia/?_php=true&_type=blogs&_r=0