Posts tagged Institutional Design

The Course of the Confirmation Process Isn’t Supposed to Run Smoothly

The debate in Washington over who’s to blame for the slow pace in filling judicial vacancies (or whether the pace is even slow to begin with) reflects an assumption that is shared by both sides: that the Senate should generally defer to the President in the confirmation process.

But that represents a flawed understanding of the Constitution’s Appointments Clause and the separation-of-powers doctrine on which it is based. Senatorial deference, far from facilitating the proper working of the confirmation process, risks undermining the judiciary’s independence as a coequal branch of government by making the Senate less likely to check the President in determining the composition of the federal bench.

What is healthy, and constitutionally legitimate, is competition between the Senate and the President in the confirmation process. Competition makes it more likely that the judges and justices who are ultimately confirmed will discharge their duties in a manner consistent with the Framers’ designs.

James WallnerSeptember 7, 2017Confirmation Process, Separation of Powers, Institutional Design

Ditching the Filibuster Won’t Save the Senate

The Senate is broken, but eliminating the filibuster is only likely to exacerbate the underlying causes of the institution’s dysfunction.

This is not the conventional wisdom, of course, which maintains that it’s excessive minority obstruction that makes the Senate unable to pass important legislation. Proponents of this view point to the gridlock that results from the filibuster. And behind it they see ideological and partisan polarization, geographic sorting of the electorate, and the prevalence of special interest money in campaigns.

There is some truth in this diagnosis, for the Senate does suffer from an inability to overcome partisan conflict between its members and thus to clear legislation. In the name of ending gridlock, some would fix the Senate by empowering the majority to pass its agenda by ending the minority’s ability to filibuster. Yet while this might well improve the Senate’s legislative productivity, it would do so by undermining the institution’s ability to perform the other role for which it was created.

James WallnerMay 26, 2017Senate, Legislative Process, Institutional Design, Filibuster