Presidential nominations exhibit A for dysfunctional Senate

Senate approval of presidential nominations is a flashpoint in the growing dysfunction and partisan gridlock in the Senate. On Monday, the issue spilled over to the US Supreme Court.

The US Senate, once considered the world’s “greatest deliberative body,” is becoming ever more rancorous, with a key divisive issue – Senate approval of presidential nominees – echoing from Capitol Hill to the US Supreme Court.

As recently as Friday, Senate leaders received a letter from Secretary of State John Kerry complaining that a backlog in the confirmation of State Department nominees “is impacting our national security and weakening America’s role into the world.” 

A year into his job, Mr. Kerry still has more than two-thirds of his leadership team vacant. Fifty-eight State Department nominees are pending before the Senate – a point that Senate majority leader Harry Reid (D) of Nevada restated on the Senate floor Monday.

Meanwhile, at the Supreme Court Monday, the justices heard arguments about whether the Obama administration exceeded the president’s executive power in attempting to circumvent this gridlock. At the heart of the case is President Obama's decision in 2012 to unilaterally appoint three new members of the National Labor Relations Board without Senate approval.

The case “speaks to the larger issue of dysfunction” in the Senate, says Richard Baker, co-author of the new book, “The American Senate: An Insider’s History.” It underscores the growing partisan divide in the 100-member chamber, where rules and parliamentary procedure are being increasingly used like weapons to delay or block the agenda of the other side.

That was the situation on Jan. 4, 2012, when a frustrated Mr. Obama, ignoring the fact that the Senate did not consider itself in recess, declared that it was and announced his three recess appointments. The plaintiff in the Supreme Court case – and, in an amicus brief, all 45 Republican senators – argues that the appointments are an abuse of the Constitution’s clause that allows the president to “fill up all vacancies that may happen during the recess of the Senate.”

Partisan tensions in the Senate have worsened considerably since 2012. Last November, Senate Democrats unilaterally changed Senate rules to do away with the 60-vote majority needed to consider all executive and judicial nominees, except those for the Supreme Court. The move was known as the “nuclear option,” because it unilaterally deprived the minority party of its voice on most nominations. GOP lawmakers retaliated by further slowing the legislative agenda to a crawl.

The Christmas break did nothing to dissipate Republican anger, Sen. John McCain (R) of Arizona returned to call Senator Reid “a dictator” for introducing a three-month extension of unemployment insurance without allowing for Republican amendments to the bill. (Reid has since said he's open to a limited number of germane GOP amendments.)

Last Wednesday, minority leader Mitch McConnell (R) of Kentucky took to the Senate floor to deliver an extensive speech on how to restore the Senate as an institution.

It’s not an issue that ever "caught fire with the public or the press,” Senator McConnell said. “But it’s a debate that should be of grave importance to us all.”

He reiterated his point in Jan. 13 oped in Politico, where he urged “senators from both parties to step back from the day-to-day legislative fights and see the Senate as a place where the partisan tensions that have always existed in America can been mediated and resolved.”

Major legislation in the past has generally required bipartisan support, whether it was Medicare, the Civil Rights Act, or the Americans with Disabilities Act. By contrast, the 2010 Affordable Care Act (ACA), passed on a party line vote, continues to come under constant attack.

But it takes two to agree to a cease-fire, and senators still seem very focused on the trespasses of the other guy and the virtues of their own members. McConnell’s suggestions last week – to involve committees more in the drafting of legislation; to allow more amendments; to work longer hours – were met by Reid with a defense of his record and a counterattack. He criticized Republicans for wanting nonrelevant amendments – he dubs them “gotcha” amendments – such as McConnell’s proposal to pay for jobless benefits by putting the ACA's individual mandate on hold.

But rehearsing the blame will not lead the Senate out of its present wilderness, observers say.

“It’s time for the two leaders to start speaking with each other on a regular basis and in a constructive way and not trying to set up talking points,” says Mr. Baker, who is also the Senate historian emeritus. “In the past, the majority and minority leaders in the Senate have generally been very proud of the open communication they had across the aisle.”