Nov. 22 (Bloomberg) -- Here’s a little secret. Some Republican senators, and perhaps many of them, are going to end up being thankful for the “nuclear option,” by which the Senate voted to eliminate the use of the filibuster for presidential nominees within the executive branch and the lower courts.
Of course, they will like that reform when the presidency is in Republican hands. But there’s some chance that they’re going to like it in the coming weeks and months as well.
To see why, suppose that the president has nominated John Doe to be assistant secretary of something or other. Let’s suppose that many Republican senators don’t much care about Doe’s selection. They know that any assistant secretary is part of a team, subject to the authority of the secretary and the White House. They also know that once Doe is in the job, he will almost certainly do fine, even if they can uncover a few warning signs in his background.
But once the president has chosen Doe, some interest groups might get pretty riled up. Maybe something that Doe has said or done will alarm the Tea Party, the National Rifle Association, the U.S. Conference of Catholic Bishops, the American Coalition for Clean Coal Electricity or the U.S. Chamber of Commerce. Or maybe one of these groups won’t much care, but will nonetheless find it in its interest to express alarm (noisily).
In recent years, any such uproar has put Republicans senators in a tough bind. Recall that they have no problem with Doe. But if they don’t put a hold on him, or at least join the clamor and support a filibuster, they are taking a risk.
Their support for Doe, or even their silence, sends a signal that they are traitors, asleep at the switch, cowards or Republicans in Name Only. If they care about giving the right signal, getting re-elected or even getting along with their colleagues, they might well join a filibuster against Doe -- even though they think he’s fine.
Most senators, whether Republican or Democratic, hope to make the world a better place. They know the best way to do that is to enact good legislation or to block bad legislation, not to have protracted and essentially symbolic fights over whether John Doe should be assistant secretary of something.
If Doe is blocked, it is greatly irritating, and possibly far worse, for the administration, but, in general, filibustering nominees is hardly an effective way to move national policy. Republican senators are entirely aware that if they want to affect policy, their best strategy isn’t to cater to interest groups that have gotten obsessed with John Doe, but instead to take strong stands on the major issues of the day, including fiscal reform, immigration, health care, foreign policy and energy. (Democratic senators were aware of the same point during the George W. Bush administration.)
The argument I am making is connected with a longstanding theme in American political thought, which is that public officials often gain from restrictions on their authority. If, for example, the power of adjudication is taken away from the chief executive, and given to impartial courts, the executive will, in an important sense, benefit. He doesn’t have to devote his limited time to adjudicating disputes. Nor does he have to worry about the political heat that comes from making unpopular decisions. The separation of powers itself has been justified partly on this ground.
To be sure, this argument is subject to important qualifications. Insofar as the filibuster reform applies to lower court nominees, it eliminates a meaningful check on presidential selections (for better or for worse). And insofar as the reform applies to cabinet heads, the minority party will lose something important, which is the ability to block actual or perceived extremists (or incompetents).
The authority to filibuster presidential nominees has also been used to extract concessions on substantive issues. Some Republican senators (and their Democratic counterparts in the future) will understandably lament the loss of that power. And if Republican senators decide to respond to this week’s reform through procedural tactics that delay nominees -- for example, extended debates -- we might continue to see some of the same fights that the change was meant to eliminate.
Let’s hope not. In a democratic society, the minority party is entitled to both consideration and respect. The filibuster has a legitimate and important place. But in recent years, the process has gotten out of hand. If Republican senators are freed of unwelcome political pressures that required them to devote time and attention to blocking John Doe rather than to engaging the issues that really concern them, they might conclude the filibuster reform wasn’t so bad after all. They might even start to like it.
(Cass R. Sunstein, the Robert Walmsley University professor at Harvard Law School, is a Bloomberg View columnist. He is a former administrator of the White House Office of Information and Regulatory Affairs, the co-author of “Nudge” and author of “Simpler: The Future of Government.”)
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