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Grading the Senate

- April 24, 2013

In a thoughtful post, Jon Bernstein hands out a tentative report card on Senate reform, suggesting that the Senate deserves a passing grade based on its performance so far this year.  Jon suggests that the intent of the reforms– to streamline some of the delays endemic in the 60-vote Senate– might be taking root.  But I’m not yet convinced.  I think senators need more time to finish the test.

Jon’s key piece of evidence are the swift confirmations of four appellate court nominees to the federal bench (five if we count the nomination to the limited jurisdiction Federal Circuit), progress on a range of executive branch nominees, and handling of the gun control measure (securing cloture to debate the bill and consideration of both parties’ amendments).  I agree that partisan fires have cooled a bit in the Senate, but I’m not so sure we should attribute these changes to the adoption of reforms this past winter.  Those reforms allowed for expedited motions to proceed, a streamlined process for getting to conference, and expedited votes after cloture on nominations to the federal district courts.

So why am I skeptical?

clinton_tguideFirst, reform left untouched confirmation procedures for appellate court nominees.  The only reforms applied to judicial nominations were reserved for confirmation votes on district court nominees.  I suspect that swift action on these four appellate nominees more likely stemmed from the passing of the presidential election, making moot the GOP’s reliance on the so-called Thurmond Rule (a practice that GOP senators had used last summer to justify the blocking of Court of Appeals nominees in the run up to the presidential election).  Moreover, three of the four nominees came with strong support from their Republican home state senators.  By lifting the Thurmond Rule, GOP senators were deferring to the preferences of their own GOP colleagues— not necessarily to concerns about abiding with the spirit of reforms to speed up the Senate’s practice of advice and consent. At one point last year, it was Sen. Coburn (R-Oklahoma) who had called out his GOP colleagues for their obstruction of the 10th Circuit nominee.  The Senate, Coburn charged (without a hint of irony), was a kindergarten playground.  And keep in mind that just weeks before, Reid threatened to go nuclear “if the Republicans in the Senate don’t start approving some judges and don’t start helping get some of these nominations done.” Idle threat? Perhaps, but suggestive that this winter’s reforms might not be responsible for instilling more cooperative behavior in the GOP conference.

Second, Majority leader Reid this week stopped short of taking full advantage of the new procedure for getting to conference.  In attempting to go to conference with the House over the budget resolution, Reid availed himself of the new Senate’s new mega motion to get the Senate to conference– eliminating the need to go through three separate motions that had previously been required to get to conference.  But Reid did so by seeking– unsuccessfully–  unanimous consent to pass the super-sized conference motion.  Reid might have gone a step farther to seek cloture on the mega motion, given that the new rule brings the Senate to a cloture vote after just two hours and eliminates post-cloture debate on the motion.  But Reid had little need to attempt cloture: He couldn’t count on 60 votes and he had already made his point– blaming the GOP for inaction on finalizing a budget.  This doesn’t mean that the Senate fails the test of reform; I just don’t think they’ve finished taking the test.

[UPDATE:  A Senate procedural gnome offers the following correction.  Reid had to secure consent to advance to conference and could not have exploited the new compound motion for getting into conference; the House and Senate used different legislative vehicles (a House concurrent resolution and a Senate concurrent resolution), rather than amending the other chamber’s concurrent resolution.  The mega motion applies to situations where the two chambers have legislated on the same vehicle.  But the broader point stands. It’s too early to grade the Senate!]

Surely, the Senate deserves some credit for the cooling of partisan fires– as evidenced as well by the chamber’s completion of a fully amended and debated budget resolution (though don’t forget the Senate needed cloture to debate the CR!).  But whether the reforms have helped to instill better behavior probably remains to be seen.