Putting “Holds” on Hold

Recent weeks have witnessed considerable media attention on a fairly obscure Senate practice: that of Senators placing a “hold” on a nomination.  Holds are essentially a method for Senators to tell the Majority Leader that if the Leader were to try to move a nomination by unanimous consent, that Senator would object on the Senate floor.

Much of the attention has unsurprisingly come from Democrats, who see the use of holds as obstructing President Obama’s ability to get in place his preferred personnel.  Perhaps getting the most attention was Senator Richard Shelby’s placing a hold on 70 some nominations (full disclosure: I spent seven years working for Shelby).

What is missed in the debate over holds is whether the Senate should be moving nominations by unanimous consent in the first place.  President Obama’s supporters contend that his nominees deserve an up or down vote.  Yet that is exactly what is required by a hold: an up or down vote.  Holds do not have to be honored by the Majority Leader (else why doesn’t someone just place a hold on health care?).  In fact, nominations are privileged motions, meaning the Majority Leader can bring up a nomination for debate and vote at any time.   

Moving a nomination (or even legislation) by unanimous consent all but guarantees that the nomination in question will receive zero deliberation or debate by the full Senate.  Whether a particular position is subject to Senate confirmation is almost completely up to Congress.  So if Congress decides that a position is important enough to demand the “advice and consent” of the Senate, then one would assume that such a position would also merit deliberation and debate by the Senate.  In passing so many nominations (and legislation) by unanimous consent, the Senate fails in its responsibilities. 

Congress finds itself in this bind because of its own doing.  In desiring to have government intrude in some many aspects of our lives, Congress has decided that thousands of political appointees are needed to run those intrusions.  But with so many appointees subject to confirmation, the Senate has no choice by to move nominations without debate for deliberation, for there is not enough time in the day to do so, especially when the Senate prefers to sending its time on grand policies, rather than the business of simply governing.

The solution is not to get rid of holds.  The solution is to reduce the involvement of government in our lives, so that the Senate does not have to process thousands of nominations every year.