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Against Senate Resolution 355

By: Charles U. Zug
September 10, 2018

n April 25, Senate Resolution 355, shortening debate time for executive-branch nominations, passed the Senate Committee on Rules and Administration. If passed by the Senate later this session, the regulation would—supporters anticipate—help combat the obstructionist tactics of Senate partisans seeking to delay Presidential nominations.

Republicans favoring the resolution claim that Senate democrats have unnecessarily protracted debates to stymie the Trump administration’s executive appointment process. “Senate Democrats' needless delays in the confirmation process,” Commented Sen. Roy Blunt (R-MO), “are wasting hours of time we should be using to focus on the big issues facing our nation.” Resolution 355, introduced in December by Sen. James Lankford (R-OK), would alter the present “Senate Rule 22” by reducing debate time for most executive branch nominees from thirty to eight hours, and district court nominees from thirty hours to two.

There is precedent for the measure. A similar proposal, “Senate Resolution 4,” was passed with bipartisan support—78-16—by the Democratic Senate in 2013. But because of its sunset provision, Resolution 4 passed into abeyance the following year. In contrast, Resolution 355 would make the change permanent, shortening debate in order to remedy obstructionist filibustering and streamline the appointment process.

Today, Resolution 355 seems necessary because Senate partisans use “debate” time to waste time. Their goal—similar to that of Senate Republicans under Obama—is to hamstring the President and hopefully discredit his party in the process. Accordingly, the best way to fight obstruction, reason supporters of Resolution 355, is to deprive would-be obstructors of the opportunity to do so. By this logic, the problem is not the misuse of debate time, but the time itself.

In fact, it’s the reverse. While ostensibly making government more efficient, Regulation 355 would discourage reasoned debate and incentivize unthinking partisanship.

Senate debate time for the vetting of executive nominees exists so that legislators can weigh the merits of nominees in order to staff a better government—and, if necessary, so they can counteract the President should he attempt to staff his administration with incompetents, or cronies, or both. (Consider the Harriet Miers and, more recent, Andrew Puzder nominations.) The Senate is Constitutionally-positioned to evaluate and if necessary oppose the President.

Accordingly, Senate debate time has a potentially positive value for the whole federal government. Properly used, it fosters debate or “deliberation”—collective reasoning on the merits of public policy, as Claremont McKenna professor Joseph Bessette defines it—giving members of both parties an opportunity to hear what should concern them most: the strengths and weaknesses each executive nominee brings to the table.

Contemporary practice perverts this logic, however. Instead of evaluating and contesting the President, members of the President's party within the Senate obstinately press for his legislative agenda. The President as a result comes to rely on fellow partisans in the Senate to abdicate their Constitutional prerogative to vet his nominees. And because the President’s party refuses candid debate, the opposition in turn resorts to non-deliberative, obstructionist tactics like filibustering. Thus, time set aside for reasoned debate is wasted instead.

The Senate has not always been an institution divided against itself. Nineteenth-century Senates were deeply partisan, but they were also sites of genuine deliberation. For example, because they actually vetted nominees, 19th century Senates actually denied executive appointments much more frequently than does today’s Senate. “Over the course of the nineteenth century,” writes Congress and Presidency scholar Jeffrey Tulis, “nearly one of every three presidential nominees to the Supreme Court was rejected by the Senate. In the present century,” by contrast, “there have been [sixty-nine] presidential nominations but only six rejections by the Senate. Nine of every ten nominations have been confirmed in the twentieth century.” Today, the Senate vetting process drags on because senators contrive ways of wasting time; but in the end the president almost always gets his desired appointment—no doubt because opponents rarely have substantive objections to mount against them.

Thus, instead of remedying the defect of obstructionist partisanship, Regulation 355 would only exacerbate a deeper pathology in Congress: its inability to reason collectively as a result of misused partisanship.

Reducing debate time because Senators abuse it for foolish ends is like reducing time for math class because the students throw spitballs instead of doing algebra. Accordingly, what’s needed is not diminished debate-time, but institutional education in the practice of deliberation—examples of which the history of the Senate is replete with.