Let me dispose of the most likely reform needed in the Senate- that of judicial appointments. Unfortunately, activist judges today have sullied the entire process. What was once a low key affair has become a battleground between the Left and Right. In the past with the Supreme Court, of 151 nominations, only 29 were ultimately rejected or withdrawn. The most notorious rejection was that of the qualified Robert Bork in 1987 which changed the dynamic forever. Today, about 10% of all District Court level positions remain vacant creating a backlog in cases and increased workload on current judges. While many dismiss this state of affairs, remember that there is a Constitutional right to a speedy trial.
There are also many vacancies at the appellate level. However, there are qualitative differences between a District Court judge and an appellate judge. As one moves up the judicial food chain, their role and importance increases. District Court judges are the triers of fact. Appellate court judges are essentially the triers of the triers of fact. Of course, the Supreme Court is the ultimate arbiter here. As such, District Court judges must apply the law as it exists at the time to the facts of the case before them. If it is determined that they made an error on appeal, their decision in the case will be over-ruled and remanded. Since District Court judges are more “objective” for lack of a better word, blocking their nominations or refusing an up or down vote by the full Senate should be reserved for only those nominees with ethical or legal objections. For example, if there are discrepancies on a tax return or they have a DUI conviction in their past, the Senate should rightfully look upon that nominee with suspicion. But, absent these issues, after committee investigation there are no problems, they should be referred to the full Senate and confirmed within 30 days.
District Court judges are the natural stepping stone to the appeals court level. If so, they have a record. The primary criteria, besides those listed above, should be whether as a lower court judge they applied the law evenly, fairly and, most importantly, accurately. This will be revealed in their success rate against appeals. Congress can set the criteria, but suppose the lower court judge prevails 90% of the time on appeal. One can assume they have satisfied the criteria of fairness and accuracy. Obviously, if they fall below a threshold, then further investigation may be required. But if above it, then assuming no ethical problems, their nomination should be referred to the full Senate and a vote taken within 30 days. Regardless, committee investigation should last no longer than 90 days. This would then move the time up from nomination to confirmation vote to a maximum of 120 days.
With the Supreme Court, the stakes are higher for both sides and there should be no changes in the process. Despite the rhetoric and posturing and hand-wringing, the process works amazingly well. While Sotomayors and Kagans may get through, to the other side so do the Roberts, Alitos and Scalias. Since Bork, the strategy has been to put forth the stealth nominee. Sometimes this backfires as in the case of Souter. But, there have been more egregious errors in the past (Eisenhower and Brennan) and the record is pretty even here.
There is a senatorial courtesy that a home state Senator be consulted first on any judicial nomination that affects their state. This proposed system need not upset that courtesy. Illinois, for example, alternates which Senator should be consulted. If there are objections, then that Senator and that Senator only should have the right to place a hold on the nomination.
Which brings us to the practice of holds. Through consultation with their party’s leader in the Senate, any Senator can indefinitely delay a vote on any presidential appointment. This practice was instituted to ensure that with any nomination or piece of legislation that affected any Senator’s state, or involved an issue they felt very strongly about, the individual Senator would be granted time to review and decide on the nomination or issue. Although both sides criticize this practice, both sides are equally guilty of using it. Past reforms have dealt mainly with transparency where the Senator placing the hold is kept secret, but identified after so many days. However, Senators have found a way around this by piggy-backing holds. As the time is set to expire on the secrecy of the hold, that Senator drops the hold only to have it taken up by another Senator thus expanding the secrecy “statute of limitations.”
The practice of the hold is an important tool to keep the Executive in check. Obviously, it should not be totally eliminated. Past attempts at discouraging its abuse through transparency has failed. Instead, look at the original idea behind it: to give any Senator time to thoroughly review the nomination or piece of legislation. Increasingly, Presidents have used regulatory agencies to advance their agendas. In the case of nominations, perhaps a two-Senator hold system should be instituted and it can remain secret. However, indefinite holds should be barred and limited to six months. I believe six months is adequate time for any Senator to review a nomination and convince their colleagues one way or the other. As for the issue-oriented holds, Senators should also be limited here. Since considering and passing laws is their primary purpose, holds on legislation should not exceed three months and the holding Senator should have at least three co-sponsors to the hold that can remain secret. Further, they should be limited to one hold per session of Congress forcing them to defend or fight against an issue they especially hold near and dear.
Before moving on to the filibuster, another area suggested for reform is committee assignments. Both houses of Congress set up rules and guidelines for committee assignments. For example, all members must sit on at least one major committee (as defined by them) and two others. Once appointed by the party leader who has to play referee with respect to individual wishes and desires, they are usually on that committee until they are voted out, request off, or are kicked off by party leadership. One then moves up the ranks of the committee by means of seniority, but that need not be the case all the time.
Moving from a seniority to a merit-based assignment system will not necessarily bring about the desired results which should be good legislation. For example, how does one gauge “merit?” Is it by the number of bills they move out of committee and are approved by the full body? Is it the quality of the legislation? How does one establish the parameters of “quality?” The seniority system is conveniently the best system in use. However, that is not to say there should not be reforms. When on a committee, that request is often because that committee’s workload and functions may touch upon something intrinsic to a state or congressional district. For example, someone from a farm state like Iowa may request and be appointed to the Agriculture Committee. A Congressman with a large military contractor presence in their district may request the Armed Services or even Appropriations Committee. Conversely, these legislators will naturally be “experts” in the problems that manifest themselves as laws that originate out of these committees. But, it also true that these legislators will be overly protective of those interests. A member of the Agriculture Committee from Iowa is less likely to vote against farm subsidies or corn ethanol subsidies than a committee member from a heavy manufacturing state.
There are two workable solutions. First, committees should be comprised of members who are not directly invested in the legislation that originates from the committee. It is perfectly fine to have farm state members on the Agriculture Committee, for example, provided there are an equal number of non-farm state members. This would balance the debate.
Secondly, this is the perfect place to institute “term limits” because it can be achieved through the rules of Congress. For members repeatedly voted back to Congress, they maintain their committee memberships and become entrenched there. They become self-annointed experts in that area. Richard Lugar is a perfect example. As the ranking minority member on the Senate Foreign Relations Committee (hence, he has been there a long time), he is considered the GOP’s “expert” on foreign relations. The ONLY thing that makes him an alleged “expert” is his seniority on that committee. But, are a Saxby Chambliss or Kirsten Gillibrand- two non-members- any less an “expert” on foreign relations? A good idea would be to limit a Senator to four Congress’ on any committee (8 years) and then rotate them off that committee. In the House, a four-term committee membership limit (8 years) could likewise be instituted. That more than an absolute term limit solution would help improve the image and workings of Congress.
The biggest cause-celebre regarding Senatorial reform is the elimination of or limits on the filibuster. As many have noted, Senate Rule 22-B, that which governs filibusters and cloture (a vote to end debate and move on to an up or down vote), is often pointed out as the culprit of a do-nothing Congress. The House has no filibuster and laws are passed with regularity and relative speed before they hit roadblocks in the Senate. But, the Senate is deliberately designed to be “obstructionist” and certainly more deliberative than the House for reasons explained earlier. Most importantly, cloture and the effective filibuster guards against the “tyranny of the majority.”
Suppose the Senate worked like the House and there was no rule 22-B and that their rules stated there could be a maximum of 30 hours of floor debate. First off, all the speeches and debate on the floor of the Senate are not going to change anyone’s position or vote. More can be achieved through horse trading than through persuasive argument. That is actually the first pitfall and it is what happened during the health care debate with the “Louisiana Purchase” and the “Cornhusker Kickback.” The second pitfall is that a mere 51 of 100 votes would push forward legislation that perhaps less than 40% of the American public agrees with. Again, Obamacare is the perfect example.
To see the tyranny of the majority, one need look no further than California where democracy runs amok with their almost annual 25 ballot questions. For a state slipping into the Pacific Ocean under a mountain of debt, they just recently approved yet another tax increase on themselves to fund education in the state. The electorate, through a simple majority like that proposed in the Senate, simply cannot make a thorough judgment of the question based on 6 lines of interpretation on a ballot. It is possible one can find 51 votes in the Senate for any piece of legislation no matter how bone-headed. But, does that make it good legislation? Does that make it legislation that should be foisted upon the majority of Americans to their possible detriment because the occupant of the White House says so?
Rule 22(b) is especially designed to create consensus on major pieces of legislation. When you are reordering 16% of the American economy in the name of health care reform, one would hope that at least one member of the opposition party could be convinced of its merits. Not a single Republican voted for Obamacare in either house of Congress, yet several Democrats voted against it. And if it is legislation of this magnitude, then gimmicks like the budget reconciliation process should not be involved.
The so-called “nuclear option-” elimination of the filibuster- is no option at all. Both parties are acutely aware of the ebb and flow of majority status in the Senate. One can rest assure that if Republicans had gained control of the Senate this year or in 2010, Democrats like Dick Durbin, Chuck Schumer and Harry Reid would be singing a much different tune today.
Admittedly, both parties have, at times, “abused” the rule somewhat. It is somewhat silly to hold up a piece of legislation due to issues not germane to that legislation. Part of this is the amendment process which, incidentally, Harry Reid has been a particular culprit in abusing. By “filling the tree”- limiting the number of offered GOP amendments by putting his own in there- he has simply made the minority party more intransigent by resorting to the filibuster more often. It is like an escalating war, or kindergarten playground spat. A solution would be to limit amendments to legislation reported out of committee to five for the majority party and four by the minority party and that is it. At least two from each side would have to be germane to the legislation. Approval or disapproval of amendments would require 55 votes with no cloture but an end to debate after 10 hours per amendment evenly divided. That is 90 hours of debate about amendments followed by 30 hours of debate of the overall legislation as amended. Cloture votes and a three-fifths majority would be required for any legislation where either the OMB, CBO, or CRS determines its economic effect would exceed $100 million. Obviously, any vote on a $2 trillion budget package or any major appropriations bills would require cloture.
Another thing that needs to be reformed are omnibus spending bills. Farm bills, for example, are usually five year deals. That represents at least five years debate over them. Yet all to often, they are passed hastily at the last minute. Road construction, which should be part of a transportation bill, often ends up in an appropriation for the judiciary or some other entity. The bigger the bill, the greater the chance of abuse, pork, fraud and misallocation of funds. And incidentally, each appropriation bill should not exceed two years which would allow Congress and the agencies adequate time to gauge their effectiveness. The non-effective ones would be “sunsetted” and the good parts retained or modified.
Virtually every year, we hear how this or that “leader” is going to eliminate waste or redundancy in the government. Every year, things get worse. That is a failing of our system. To illustrate the irony, look at the problems encountered when the military decided to close bases, or consolidate them. Each little fiefdom- state or congressional district- had a hissy fit better reserved for the likes of most Liberals. Instead, an independent commission had the bigger balls to make the necessary and sometimes hard decisions that Congress lacked the fortitude to do. Another example is the Simpson-Bowles recommendations. If Congress had the intestinal fortitude to do what was suggested, then perhaps Mitt Romney would be sitting in the Oval Office come January. Obama would have lost his class warfare card and more importantly, Obama would have had to concede the fact that the escalating cost of entitlements needs to be dramatically addressed and that is where Romney and Ryan had the advantage. Look at the result: a basic concession that taxes need to be increased on the richest Americans if recent rhetoric is to be believed. We fought and lost an election over something that could have been long settled. It is not compromise; its commonsense. If the GOP is going to fight over something most concede will (1) not really hurt the rich and (2) not really affect the fiscal bottom line either way, then concede the point (but redefine “rich” to something above $250,000 a year), take away their talking point, let them gloat for a month, then hold their feet to the all more important entitlement reform fire. This is not brain surgery or rocket science. Sometimes it means losing the battle to win the bigger war. It just seems that lately, the GOP is picking the wrong battles or has lost sight of the bigger war.