In Defense of the Hold.

Riffing off of Sen. John McCain's hold on director of national intelligence nominee James Clapper, Jonathan Bernstein offers a qualified defense of a somewhat obscure rule that has been the target of progressive ire in these parts and others:

Today, Senatus tweeted "McCain spokeswoman says he's released "hold" on Clapper nomination," followed shortly by an Ambinder tweet: "Clapper's free -- McCain releases his hold after his office gets the report on the black budget EO/MASINT satellites."

This all strikes me as a pretty reasonable way to conduct business. The president is always going to try to ignore Congress. Congress needs ways to fight back. Using a hold in this way works well. If the White House (or the agency, if that's the target) doesn't want to do what the Senator wants, it has to balance that against the cost of slowing, or even killing, a nomination. The Senate as a whole has an interest in preserving the rights of individual Senators to have this weapon, as long as it's used against the executive branch.

I think this is about right, especially for those on board with a political system (like ours!) that privileges interest groups at the expense of bureaucrats and ideologues (to borrow Matthew Yglesias' formulation). Indeed, I made a version of this point while writing at The Washington Independent earlier this summer. By and large, senators are supposed to represent parochial interests, and when used sparingly, the hold is a useful way to use individual influence or force presidents to attend to the needs of Congress.

Contra prevailing progressive opinion, the problem isn't that holds exist, as much as it is that they've been abused to an absurd extreme. But, as Bernstein explained with some detail in an earlier post, there is a pretty straightforward solution to this problem that doesn't require a rule change:

Rather than make Senators explain themselves and have the Majority Leader judge which holds are legitimate and which are not, the Democrats should play hardball: they should let the Republicans know that unless the total number of holds on nominations shrinks dramatically, the Dems will start calling nominations up anyway, hold or not, and force the GOP to find 41 votes against considering them.

As with judicial nominations, Democrats deserve some of the blame for these shenanigans. By refusing to even offer nominees for judicial vacancies, President Obama has exacerbated the problem of GOP obstruction. Likewise, by refusing to use the rules to their advantage, Senate Democrats have allowed Republicans to run roughshod over them. There are still a few months left in the 111th Congress, and Democrats should use that time to take advantage of the rules, and move President Obama's nominees through the Senate.

-- Jamelle Bouie

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