THE BLOG
11/04/2013 03:56 pm ET Updated Jan 23, 2014

Mel Watt's Confirmation and the Senate at a New Low

On Thursday the Senate failed to invoke cloture and consider the nomination of Mel Watt to lead the Federal Housing Finance Agency, where a Bush holdover continues to restrict access to lower rates for millions of working Americans. Never before has cloture been used to prevent a sitting member of Congress from a presidential appointment. Constitutional historians found one other example in 1843, but in that case the nominee failed to receive confirmation on the floor of the Senate by a majority vote. That process is exactly what is provided by Article II, Section 2, Clause 2 of the U.S. Constitution, commonly called the "advice and consent" of the Senate.

That same clause provides for a supermajority vote on treaties, so it is quite clear that if a super majority was intended on nominations, the Constitution would have said so. It is ironic that the trade deals that have ravaged jobs for millions of Americans likely met the original test as treaties, given their long range implications and participation of numerous foreign governments, yet if they are fast tracked they cannot be amended and are adopted by majority vote.

At least 100 other nominations are backed up in some way including three nominations to the D.C. Circuit Court of Appeals, and a wide range of executive and judicial branch nominees. President Obama's term is over in three years and many of these nominees agreed to serve nearly one year ago.

Again there is an opportunity for the Senate majority to act like a majority and restore at least some sense of democracy. For Tea Party followers' inaction, particularly with a Democratic majority, it is perfect. In the next two weeks, the Senate again has an opportunity by a simple procedural motion to move nominations forward by a majority vote. After a nomination fails to gain a supermajority, a motion can be made to overrule the chair. This has been done 18 times since 1978 and is not a rules change, but a simple procedural motion.

Article II, Section 2, Clause 2 requires a majority vote on nominations. It is past time for Democrats to take this small step so that millions of American who voted for this Senate and this president have at least this small bit of their voices heard.