Menendez Relents- Highlights Blue Slipping and Senate Holds

Menendez Relents- Highlights Blue Slipping and Senate Holds Robert A. Levine  1-17-12  New Jersey Democratic Senator Robert Menendez has relented and is no longer blocking the appointment of Judge Patty Shwartz to the United States Court of Appeals for the Third Circuit. His obstruction was apparently due to Menendez’s antipathy to Shwartz’s long time boy friend, federal prosecutor James Nobile, who had investigated Menendez for possible corruption charges in 2006. Menendez’ blockade came despite Judge Shwartz having been designated unanimously well qualified by the American Bar Association, the highest rating possible. New Jersey’s other Democratic Senator, Frank Lautenberg, praised Judge Shwartz when she was nominated, as did judges and lawyers with whom she had worked. Before he changed his mind, Menendez claimed he had misgivings about Shwartz’s knowledge of constitutional issues.  This imbroglio highlights the arcane Senate rules and rituals that allows lone senators toblock appointments and hold up legislation. In the case of judicial appointments, home state senators are given the courtesy of certifying the nominee before he or she comes up before the Senate Judicial Committee, a custom known as “blue-slipping.” If both senators from the nominee’s state do not “blue slip” the candidate, the Chairman of the Judicial Committee will not schedule the hearings necessary to make a recommendation to the Senate. And the individual senator holding up the nominee is under no obligation to provide reasons, which can be personal or political in nature.  Menendez’ resentment of Shwartz’s companion was evidently enough to impede the judicial nomination of someone to the bench who was eminently qualified. This obstruction should be seen in light of the fact that many federal judgeships are now vacant, delaying cases and increasing the workload of the current justices. Some of these vacancies have been the result of the Republicans blocking Obama’s nominees for political reasons, but to have a Democrat responsible for the obstruction was unusual. Menendez’ turnabout and agreement to support Judge Shwartz came after a meeting and lengthy discussion with her, which was obviously a face-saving measure that permitted him to change his mind. He had been excoriated in the media and by other politicians for his stance.  The glacial pace that is the norm in Washington and the difficulty Congress has in getting important things done are partially the result of vestigial Senate traditions that are unseemly for a modern government. These include the “hold,” the filibuster and pro forma sessions. The Senate “hold” is the practice that allows individual senators to prevent a bill from reaching the floor of the Senate for a vote, with no explanation required. Similarly, senators can block the appointment of officials for government agencies that the president has nominated and sent to the Senate for confirmation. Thus a single senator has the ability to throw a monkey wrench into the gears of government by slowing down or obstructing the entire body of the Senate. As seen with Menendez, the motivation can be personal animosity or revenge, and a senator can poke a finger into the eye of a president from the same party. Senators are very protective of the privileges that evolved in past sessions and provide them with inordinate power and stature, making reform difficult. But for government to function efficiently, cryptic Senate rules and traditions that are not legally binding, and impede the institution from conducting its business, must be adjusted in consonance with the new digital world where speed can be critical. Certainly, there is no rationale for the Senate “hold” or “blue slipping” and eliminating them should be part of future reform measures.  Resurrecting Democracy www.robertlevinebooks.com