As key presidential nominees sailed through the Senate last week after long, unreasonable delays, there was some hope, but no guarantee, that the filibuster, used to create the logjam, will once again become what it was intended to be, the legislative instrument for questioning the majority and protecting the interests of the minority.
The filibuster's misuse ended temporarily when Republicans agreed to let long-stalled presidential nominees move forward. In exchange, the Democrats dropped their plan to use their majority vote to change the rules and eliminate the power to filibuster presidential appointees.
Especially welcome were the resulting confirmations of Richard Cordray as the first director of the new Consumer Financial Protection Bureau and Gina McCarthy to head the Department of Environmental Protection, both highly qualified appointees blocked because some Republicans disapproved, not of them, but of their agencies and their missions.
The two-year-old Consumer Financial Protection Bureau was created by Elizabeth Warren, a Harvard economist now a senator from Massachusetts, in response to business practices that contributed significantly to the financial crisis that crippled the nation.
With a director in place, the bureau is expected to make permanent reforms adopted to hold the nation's five largest lenders accountable for a series of mortgage and foreclosure abuses before the 2008 crash. The new agency will also serve as a watchdog against future anti-consumer activities in the areas of mortgages, credit, loans and fees that the financial industry does not necessarily welcome.
The new EPA head, Ms. McCarthy, served under two Republican governors hardly known as environmental extremists, Mitt Romney of Massachusetts and Jodi Rell of Connecticut, before joining the Obama administration. During the president's first term, she played a key role in efforts to address global warming and curb pollutants by closing plants emitting greenhouse gases linked to climate change. Since some Republicans do not acknowledge climate change, these actions have been unpopular, but she has been praised by industry officials who view her as open minded and willing to listen, The Washington Post reports.
Since being nominated four months ago, she has undergone a confirmation ordeal that borders on bullying, as she was inundated with requests for written responses to about 1,100 questions. All but 25 of the 1,100 have come from Republicans on the Environment and Public Works Committee, chaired by the extremely conservative Sen. David Vitter of Louisiana, who asked 600. Sen. Vitter explained he was only responding to the EPA's "historic overreach." Nothing personal.
The filibuster threat has become extremely personal in blocking high-ranking appointments. Previously, it was mostly used by both parties to block legislation or judges for the higher federal courts. The argument went that these appointments were for life and their influence would be felt, for good or otherwise, long after the appointing president was gone. Other executive appointments were considered the president's choice and hardly ever contested.
Filibustering became too easy after a 1975 rules change that allowed for "virtual" filibusters to replace the "talking" filibuster that required the filibustering senator to really filibuster - keep talking - hour after hour. Since President Obama's first election, the virtual filibuster has too frequently allowed a senator, by simply declaring his opposition, to block a nominee or bill unless a supermajority of 60 intervenes.
Senate rules are controlled by a majority of 51 and in 2005, when minority Democrats were blocking Bush judicial appointees, Republicans threatened to change those rules and allow a simple majority to confirm presidential appointees. That time, the Democrats backed down and agreed to filibuster appointees only in an "extraordinary circumstance" to be determined by both parties. This agreement headed off a constitutional crisis, got some Bush judges appointed and expired before the two sides ever had to agree on what constituted an "extraordinary circumstance."
Now, with the majorities reversed, the Democrats agreed to pull back from a filibuster-endangering rule change if the GOP agreed to approve several of President Obama's appointees.
The agreement may not last the session unless both sides can face the reality that majority power is a fleeting thing. Preserving, but not abusing, the rights of the minority, maybe even changing the rules and limiting or eliminating the virtual filibuster, would be in the best interests of both parties and the nation.