Filbusters and Holds Have No Place on Confirmations

06/14/2009 05:12 am ET | Updated May 25, 2011

David Hayes will someday be an answer to a trivia question. Or maybe even Alex Trebek's successor will pose the query on Jeopardy! : "The first Obama nominee thwarted by the U.S. Senate."

The Senate did not move forward to consider Hayes' nomination for the second ranking position in the Interior Department, refusing to end a filibuster when the vote total came up three votes short of the magic number 60.

Frankly, I've never heard of David Hayes. But Interior Secretary Ken Salazar got into a brouhaha with Utah Senator Bob Bennett, and Bennett and the Republicans decided to hold Hayes' nomination hostage.

Score one victory for GOP, one loss for good governance.

Tara Hendershott, Bennett's staff assistant, admitted to CNN that the vote was not about Hayes, it was about Salazar's refusal to play ball with her boss on oil and gas leases. The Senate role in confirming presidential nominees should not be about personal vendettas, it should be about finding qualified individuals to fill political jobs in a new administration.

It seems clear that Hayes will eventually be confirmed, probably as early as next week. Three Democratic senators -- Kennedy and Kerry of Massachusetts and Mikulski of Maryland did not vote on today's procedural vote. Maine's Olympia Snowe and Arizona's John Kyl broke ranks with fellow Republicans to support moving forward to an up-and-down vote on the nomination. If they hold their positions against what will undoubtedly be GOP pressure to go along, the nomination will move forward and be approved.

But the point should not be lost. One senator has delayed this nomination by imposing a "hold" and then convincing his partisan colleagues to go along with a procedural vote that denied confirmation. Holds are inherently undemocratic. The filibuster was never meant to be used for such purposes. And it is time for the United States Senate to mend its ways.

Holds should no longer be respected. Pure and simple.

The Senate Democratic leadership should make those who want to hold up legislation by a filibuster, exercising the rights of the minority, to do just that -- filibuster, on into the night for as long as they can. No more pro forma votes on an intention to filibuster. Half a century ago filibusters were used rarely -- and only on those pieces of legislation that changed the course of the nation. Breaking a filibuster, as was done on the major civil rights bills of the 1950s and 1960s, meant convincing those set in their ways that time for change had come.

Today, any significant piece of legislation needs 60 votes to get through the Senate. And increasingly, the same is going to be true of presidential nominations.

Republicans are threatening a filibuster of President Obama's nomination of Dawn Johnsen, an Indiana University law professor, to head the Justice Department's Office of Legal Counsel. I suppose one should take some solace in the fact that they oppose Professor Johnsen because of her views.

But wait! The views that are so objectionable were expressions of dismay over Bush Administration memos permitting torture. But of course, she was right to ask "Where's the outrage?" . GOP senators shouldn't let a little fact like that get in their way.

And after Johnsen the daggers will undoubtedly be aimed at whomever Obama nominates to succeed Justice Souter. Filibusters of Supreme Court nominees have been few and far between. The Senate will do itself and the nation a huge favor if it returns to that practice.

The Hayes' defeat -- even if it is only temporary -- focuses attention on the issue. Senators Snowe and Kyl deserve credit for putting nation and the institution of the Senate ahead of partisanship. Other Republicans -- those in the Gang of 14 would seem to be potential followers of Snowe and Kyl -- would do well to follow their example and return procedural sanity to legislating in the Senate

L. Sandy Maisel is director of the Goldfarb Center for Public Affairs and Civic Engagement at Colby College.