The most amazing thing happened in Washington this week: A confirmation process moved forward. It happened when Elena Kagan, President Obama’s nominee for the Supreme Court, appeared before the Senate Judiciary Committee. There were opening statements, first by the senators and then by Kagan. Next, there were questions. Republicans frequently indicated their displeasure with Kagan; many hinted at their intention to vote against her. But the hearings were taking place, and, at least as of press time, votes seemed likely to follow—first by the committee, then by the full Senate.
What made this mundane chain of events so remarkable? The fact that it hasn’t happened more frequently in the last year and a half. Supreme Court nominations are the most high-profile and, arguably, the most important appointments a president must bring to Congress. But they’re hardly the only ones. The president has to nominate lower-court judges and staff the executive branch, which means submitting several hundred appointments for Senate approval. And a shockingly high number of those positions have gone unfilled. A few weeks ago, National Public Radio reported that 120 Obama nominations were pending in the Senate. By contrast, as of Memorial Day 2002, just 13 Bush nominations were in similar limbo.
Among those Obama nominees awaiting confirmation are appointees to Homeland Security, the National Transportation Safety Board, and the Department of Energy. Vacancies at the National Labor Relations Board have crippled that body, particularly after the Supreme Court ruled that the agency couldn’t act without at least three members voting. But, even at agencies that can get along with temporary, acting officials, vacancies have made it impossible to fill lower positions—since it’s hard to hire people when nobody is sure who’s going to be in charge. Just last week, the Senate finally took action on about half of Obama’s outstanding nominations. But that means half—around 60, depending on how you count—are still pending. As of earlier this month, the average waiting time between committee report and final confirmation during this administration was more than 100 days.
When a nomination sits on the Senate calendar for that long, the reason is usually what’s known as a “hold”—which is, basically, a senator threatening to launch a filibuster if a nomination comes to the floor. The threat works because the Senate, overwhelmed by the volume of nominations, dispenses with most of them (and, for that matter, most Senate business) with what’s known as “unanimous consent”—an understanding that a motion can proceed without anybody objecting. One senator objecting means there’s no unanimity, forcing the Senate to have a full debate—something it simply doesn’t have the time to do that frequently.
It’s the type of institutional dysfunction observers of U.S. politics have come to expect of the Senate. But what makes this practice particularly pernicious is that senators can launch their holds anonymously, thus blocking nominations without getting the blame. A hold, in other words, can be the political equivalent of a perfect crime— unless, of course, somebody manages to expose it. This famously happened to Republican Richard Shelby after he issued a “blanket” hold on all Obama nominations, in order to make sure his home state of Alabama got lucrative contracts to build Air Force tankers and an FBI center. Democrats, to be sure, have used the anonymous hold, too. But Republicans have taken the practice to new extremes—making the case for some sort of institutional reform even more urgent.
For more than a decade, good-government legislators like Senators Ron Wyden of Oregon and Charles Grassley of Iowa have been agitating to end the practice—or, at the very least, to curb it. Wyden is a Democrat and Grassley a Republican, proving that there’s bipartisan support for this reform, even if the problem right now is largely partisan. In 2007, on their third formal attempt to alter the rule, they finally succeeded—sort of. As part of an ethics bill that passed with more than 80 votes, they won a rule change under which senators must declare their intention to mount a hold, exposing them to the kind of opprobrium that eventually made Shelby back down. But the new rule has loopholes that senators have learned to exploit. Wyden and Grassley are now pushing a proposal that would close those loopholes—by, among other things, requiring senators to file holds in writing.
The push to end anonymous holds is gathering steam, with everybody from Missouri’s Claire McCaskill to The Washington Post editorial page clamoring for it. Though the campaign has run into opposition from a handful of stubborn Republicans, chief among them Jim DeMint of South Carolina, last week’s approval of the approximately 60 nominations was, to many observers, a sign that the practice is finally becoming indefensible. Let’s hope so. Anonymous holds are not just un-Democratic. They’re undemocratic, too.