Shame on the Senate for confirmation games

US Embassy Prague

Norman L. Eisen was sworn in as U.S. Ambassador to Czech Republic on January 14, 2011 in Washington, D.C.

Article Highlights

  • Satisfaction from bipartisanship on the Eisen confirmation lasted a good five minutes

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  • In today's Senate, filibusters have become the norm

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  • Senate behavior goes beyond partisan polarization to damage the fabric of governance and worse

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The good news on Monday was that the Senate, in a show of broad bipartisan support, confirmed Norm Eisen to be the U.S. ambassador to the Czech Republic.

Eisen had been in the post for the past year on a recess appointment, and by all accounts, Czech and American, had been doing an exemplary job protecting and advancing American interests and values in a country that is a critical ally to the United States and an important commercial and trading partner.  Why the recess appointment? Because Sen. Chuck Grassley (R-Iowa) decided well over a year ago that Eisen, while serving in the White House, had not been truthful to the Senator’s staff over his role in the dismissal of the inspector general of AmeriCorps. Never mind that a voluminous record showed that Eisen had not dissembled, that the entire board of AmeriCorps, left to right, Democrats and Republicans, supported the dismissal, and the actions were upheld in two federal courts. Grassley would not budge.

He finally did after an extensive negotiation with Eisen and a carefully written apology for possibly unintentionally misleading the staff, and Eisen got his day in the Senate and 70 votes for cloture. Grassley’s was not among them, and in fact, he gave an over-the-top peroration on the Senate floor against Eisen. But, of course, it was not enough to stop the confirmation via voice vote after the cloture motion passed.

"This goes beyond partisan polarization to damage to the fabric of governance and worse — to damage to the vital interests of the United States."--Norman Ornstein

Now step back and think about the implications of what I just wrote about the contemporary Senate. Grassley single-handedly held up this ambassadorial appointment, forcing a recess appointment for a year, then relented by dropping the hold. But it still took a cloture vote and 60 Senators to confirm him! A hold is in theory a simple thing: a written statement by a Senator that he or she will deny unanimous consent to move forward on a nomination or a bill, meaning that to overcome the hold, a leader will have to spend some time and eventually build supermajority support to overcome a threatened filibuster. Remove the hold, and in theory, the vote should be straightforward and simple, requiring a majority. But in today’s Senate, the removal of a hold does not mean the erasure of a supermajority requirement — it just means that a single Senator is giving up his superpower “right” to kill a career and keep a critical post vacant indefinitely.

The satisfaction from the show of bipartisanship on the Eisen confirmation lasted a good five minutes. Then came the next showdown, over the confirmation of Mari Carmen Aponte, also on a recess appointment expiring at the end of the month, to be the U.S. ambassador to El Salvador. The ostensible reason to oppose her? Decades ago Aponte had a boyfriend who might have had ties to Fidel Castro’s government. Never mind that Senators had access to her FBI file — and that she has had a succession of top-secret clearances after exhaustive security checks. Aponte did not fare well — she fell 11 votes shy of the 60 needed once again to overcome cloture.

In a different world —  i.e., the world the United States knew from 1789 until a few years ago — her 49-37 margin would have meant a comfortable confirmation. No more. Filibusters used to be rare events for bills, rarer for executive confirmations, rarer still for judicial nominations. Now they are more than routine; they are becoming the norm. Holds were not as rare, but the use of holds to block multiple nominees for not weeks or months but years or until death, were not typical; now they are the standard. Democrats were mischief-makers in the George W. Bush years; Republicans in the Barack Obama years have become recidivist hard-core offenders.

This goes beyond partisan polarization to damage to the fabric of governance and worse — to damage to the vital interests of the United States. U.S. relations with Russia are at a crucial point across a range of foreign policy, commercial, human rights and other issues — and our remarkably well-qualified and tough-minded nominee for the ambassador post, Michael McFaul, has been held up by Sen. Mark Kirk (R-Ill.) despite those qualifications, leaving the post vacant and U.S. interests far less well-served than the country needs and deserves. With Venezuelan President Hugo Chavez’s illness, our ability to influence policy and governments in our own hemisphere is at a critical point—and Sen. Marco Rubio (R-Fla.) has held up not just Aponte but our ambassador to the critical country of Equador, leaving national interest less well-served. In a revolting display of partisan narrow-mindedness, our ambassador to Syria, Robert Ford, a courageous and distinguished foreign service veteran who put his life on the line when the uprisings against the Bashar Assad government began, went for months in limbo before the Senate GOP released the holds and let him be confirmed.

Kudos to Sen. Susan Collins (R-Maine), who has worked for years to reform the nomination and confirmation process and walked the walk by voting for cloture on the Eisen and Aponte nominations. The opposite of kudos to GOP Sens. Lamar Alexander (Tenn.), Dick Lugar (Ind.), Olympia Snowe (Maine) and others who once were champions of good governance and have also spoken out about the craziness of the current confirmation process but fell into line on the Aponte vote. And shame on a Senate which went from blocking a well-qualified nominee for an appeals court judgeship via filibuster to blocking a superbly qualified nominee for the consumer bureau, to yet another in a series of ambassadors stymied via holds and filibusters. This is no way to govern.

Norman Ornstein is a resident scholar at AEI

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About the Author


Norman J.
  • Norman Ornstein is a long-time observer of Congress and politics. He is a contributing editor and columnist for National Journal and The Atlantic and is an election eve analyst for BBC News. He served as codirector of the AEI-Brookings Election Reform Project and participates in AEI's Election Watch series. He also served as a senior counselor to the Continuity of Government Commission. Mr. Ornstein led a working group of scholars and practitioners that helped shape the law, known as McCain-Feingold, that reformed the campaign financing system. He was elected as a fellow of the American Academy of Arts and Sciences in 2004. His many books include The Permanent Campaign and Its Future (AEI Press, 2000); The Broken Branch: How Congress Is Failing America and How to Get It Back on Track, with Thomas E. Mann (Oxford University Press, 2006, named by the Washington Post one of the best books of 2006 and called by The Economist "a classic"); and, most recently, the New York Times bestseller, It's Even Worse Than It Looks: How the American Constitutional System Collided With the New Politics of Extremism, also with Tom Mann, published in May 2012 by Basic Books. It was named as one of 2012's best books on pollitics by The New Yorker and one of the best books of the year by the Washington Post.
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