2011: Can’t We All Just Get Along?

President Obama and Chief Justice Roberts are calling for bipartisanship in the New Year.

Our System Is Broken, Exhibit 6,914:

Republicans and Democrats must find a long-term solution to selecting federal judges, Chief Justice John Roberts says, while blaming both sides for the political gridlock of judicial nominations in the Senate.

“Each political party has found it easy to turn on a dime from decrying to defending the blocking of judicial nominations, depending on their changing political fortunes,” Roberts said Friday in his year-end report. “This has created acute difficulties for some judicial districts. Sitting judges in those districts have been burdened with extraordinary caseloads.”

There are more than 90 judicial vacancies in U.S. district and appellate courts. But only 60 nominees have been confirmed by the Senate for U.S. appellate and district courts in the past two years, with another 19 receiving no up-or-down vote.

Thirteen of the unconfirmed nominees received unanimous support from the Senate Judiciary Committee.

In a similar vein, President Obama is urging a Rodney King Solution:

In his weekly radio and Internet address, Obama said Saturday that lawmakers must return to Washington next week prepared to make serious decisions about how to grow the economy in the short run and stay competitive in the future.

“I’m willing to work with anyone of either party who’s got a good idea and the commitment to see it through,” Obama said. “And we should all expect you to hold us accountable for our progress or our failure to deliver.”

Alas, the system conspires against this.  Absent a crisis on the scale of the 9/11 attacks or the financial sector collapse, there’s very little incentive for cooperation.  Indeed, concessions in the name of pragmatism are the surest way to invite primary challenges and tamp down the enthusiasm of one’s party base.

Shrink The Government

The small C conservative approach to these problems is smaller government.  If the stakes were lower, the tension would decline.   If federal judges simply “followed the law” and had much less policy influence, the battles over their confirmation would be less intense.   If the federal government weren’t trying to expand its influence into more areas of our lives, there would be less to fight over.

But this is a magic pony solution.   Government is getting bigger because people are demanding it.   And, frankly, as our society becomes more complicated and our lives more intertwined — at the same time as our relations become less personal — the demand for more regulation and regulation will only grow.  And, naturally, more laws means more room for judges to make rulings on matters of equity.

Govern From the Center

A related small C conservative response is that presidents and party leaders in Congress should start with consensus positions rather than radically divergent partisan agendas.   If presidents picked moderate nominees for the courts and federal agencies to begin with, there would be less room for fighting.   Similarly, if they started with centrist positions on such matters as health care reform or tax policy, it would be harder to gin up public support for opposing the proposals.

But, again, the deck is stacked against this.   Indeed, the way to get to positions of party leadership be a True Believer or at least pander to the True Believers.   So Nancy Pelosi, John Boehner, Harry Reid, and Mitch McConnell not only have no incentive to take moderate stances but quite likely think their stances are moderate.

Reform The System

So, since it’s extraordinarily unlikely that the system will fix itself, that means the system needs to be fixed.

We could abandon or modify the filibuster and other nonmajoritarian devices in the Senate.  But there doesn’t seem to be much appetite for that within the Senate itself, for rather obvious reasons.   And that’s not the type of thing that public pressure will congeal around.

More radical solutions, such as moving to a parliamentary system under a Responsible Government model or moving to a unicameral legislature would require Constitutional amendment and there’s hardly a groundswell for them.

That doesn’t mean minor reforms are impossible.  For example, we should certainly radically reduce the number of positions requiring Senate confirmation.    Obviously, the Senate wouldn’t go along with ceding this territory to the White House.  But, as I’ve noted before, “Wouldn’t we be better off with an NLRB that consisted of professional civil servants, drawn from the Senior Executive Service, with rich experience but no obvious ties to organized labor or the Chamber of Commerce?   Ditto, for that matter, the Equal Opportunity Employment Commission and the Customs and Border Protection Division of DHS?  Politicizing those offices undermines their perception as fair arbiters.”

Circumvent The System

To the extent we can’t change the system, we’ll likely find ways to exploit its loopholes.

The misuse of recess appointments, a legitimate Constitutional provision designed for the exigencies of a part-time Congress we haven’t had in a century, will likely escalate.  I’m actually surprised more judicial vacancies weren’t filled this way earlier in the week.

Another solution with broader flexibility is to kick the can to “bipartisan commissions” in the way we have with military base closures and Social Security reform.   We could — and probably should — have independent commissions vetting and recommending judges, regulatory commission members, and other technical specialists.   Presidents would still have the right to pick from the slate to find candidates who most closely match his policy agenda, but they’d likely be more moderate than if ideology were the first cut rather than the last.

While I think this actually makes sense in the cases of filling certain vacancies in government, I tend not to be a fan of it in terms of legislating.   It’s extraconstitutional and amounts to passing the buck on the part of Congress — especially if there’s a BRAC-like provision requiring an up-or-down vote on the whole proposal with no amendment possible.   But it does seem the most likely path out of the current intractability.

The problem isn’t so much that we’re not getting anything done — the last Congress actually passed a surprisingly large amount of legislation, including some rather major reforms — but that mustering the required votes in the Senate tends to come at the cost of really lousy compromises which lead to really disjointed legislation.   ObamaCare was a classic case, in that we managed to pass some very popular bits (policy cancellation reform, coverage for college-age adults) without doing anything to fix the underlying problems and, indeed, likely exacerbating them.

FILED UNDER: *FEATURED, Law and the Courts, US Politics
James Joyner
About James Joyner
James Joyner is Professor and Department Head of Security Studies at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.

Comments

  1. steve says:

    I agree with the general tenor of your post. I disagree about the filibuster, I think. If we remove the filibuster, we would govern much like a parliamentary government for at least brief periods of time. We have a government based upon party affiliation. The three branches of government no longer jealously fight over their privileges as was seen at our founding. Remove the filibuster and the Senate and executive branch will act in unison. I also think that there might be some movement on doing away with secret holds and allowing one senator to hold up nominations.

    Other than that, I do not see much that is likely to change. While all of these are not new problems, I do think it worse with the level of epistemic closure our media now provides, coupled with 24 hour coverage.

    Steve

  2. James Joyner says:

    Steve: I think removing the filibuster and secret holds — there’s simply no justification for the latter — would radically streamline the process. I just don’t think it’s doable.

  3. Dave Schuler says:

    It seems to me that there are plenty of places to point fingers when looking for what’s wrong with our present system. Certainly backend procedural issues like the filibuster, holds, the structure of Congressional committees and so on are significant. But so are frontend issues like registration, fundraising, primaries, district boundaries, barriers to entry, and so on.

    Unfortunately, we should recognize that present incumbents are the beneficiaries of the present system and are exceedingly unlikely to change it. State by state reforms can be effected over time. The only way I can imagine national changes taking place is by Constitutional Convention.

    The question then becomes whether the devil we know is better than the one we don’t.

  4. This seems to be a current running theme that people are striving for. Two of the writers at GT called for a similar unity in the last few weeks:

    http://www.gonzotimes.com/2010/12/for-2011-five-practical-demands-on-which-anarchists-libertarians-and-marxists-should-agree/

    http://www.gonzotimes.com/2010/12/4651/

    Both those and this one seem to have some very different ideas. Maybe it’s time to look for something a little more inclusive.

    Everyone wants some ‘solidarity’ nobody seems to agree on where it can be found.

  5. Ben Wolf says:

    The lack of substantive policy differences regardless of who controls the White House or Congress should be ample evidence that the parties are in fact cooperating, with the shrill conservative vs. liberal bickering amounting to little more than theatre. Strange that people continue to believe in two parties opposed to each other rather than the unitary Money Party we actually have.

    Ask yourself this question: if the much bemoaned hyper partisanship of Washington disappeared tomorrow, what policies would we see fundamentally change?

  6. floyd says:

    Ben Wolf;
    So should we then come to conclusion is not Party Vs. Party,
    but rather Washington Vs. the people of the United States?

  7. Ben Wolf says:

    I don’t know that I’d go so far as to say Washington is deliberately targeting the American people. I would say that to Washington, the interests of the people aren’t a priority. What more evidence do you need than the 2006 election to conclude that the eternal battle in
    Washington is a farce?

    The Democrats ran on a platform of holding the Bush Administration accountable for the war, and were given a majority. Pelosi and Reid then devoted themselves to protecting their majority in Congress. They did nothing to hold the administration’s feet to the fire and passed every military spending measure, every expansion of the war and every expansion of federal power with little to no debate.

    In other words they did exactly what the Republican controlled congress was doing, their supposed ideological adversaries.

  8. steve says:

    @Ben-There is some truth to what you say, but the filibuster distorts policy. Instead of getting legislation that reflects what most people want, it is dictated by what you can get the 59th and 60th senator to agree with. That does not give best results.

    Steve

  9. Instead of railing about filibusters, which admittedly make the current situation ore difficult, why not address the root cause of the problem which is the gerrymandering and rulemaking that protects our political class from true competition?

  10. James Joyner says:

    Charles,

    Those things really only apply to the House, which isn’t the problem. By its very nature, the House is dominated by the majority party, even if it’s a narrow majority.

    The Senate is, by design, the holdup in the system. Senators are elected at large, so there’s no gerrymandering. And Senate races tend to be relatively competitive, as the prestige and 6 year terms make it attractive to governors, House members, and billionaires.

  11. steve says:

    @Charles- Sure, addressing gerrymandering would be good also, but as James notes, the Senate is the big problem now that the filibuster is the norm, not the exception. If by rulemaking you are referring to the Senate rules, I agree. I am a little less pessimistic than James. As the Senate sees itself bypassed more, see the recess appointments, I suspect they will not want to lose their relevance. I also think that as the Senate turns over more, a high probability given our economic climate, the younger Senators will become frustrated at not being able to pass legislation.

    Steve

  12. Ben Wolf says:

    Steve, the thing is, the House under Democratic control didn’t need one senator to obstruct the President’s war policies. All it had to do was keep things bottled up, it didn’t actually have to get anything passed. Instead it actively worked to approve what the president requested.

    The Democrats did that precisely because the party implicitly supported the war and in 2006 cynically manipulated the Left and independents who had tired of it. What we got was continuation of virtually identical policies.