Senators Have Perfected the Art of Obstruction

Instead of showing up for work last Tuesday, Senator Tommy Tuberville, Republican of Alabama, went to Donald Trump’s golf club in Bedminster, N.J., to hear the former president rail against his latest criminal indictment. Mr. Tuberville’s absence gave the Senate an opportunity to end his one-man blockade of all military promotions, a campaign he has been waging for four months to protest the Pentagon’s policy paying for service members to travel for an abortion if they live in a state where it is illegal.

But did the Democrats in the Senate seize the moment and try to get a vote on the promotions? Not a chance.

“One of the unwritten rules of the place is you don’t take advantage of a person’s absence,” said Senator Richard Durbin, Democrat of Illinois, defending an indefensible Senate tradition that lets a single member defeat the will of the majority and hold up virtually any issue for any reason.

Senators could abolish this practice with a majority vote, but have locked themselves into so many hoary old-boy logrolling traditions that they can no longer see why voters are increasingly repulsed by their inaction. In theory, holds and other obstructive privileges are all about personal courtesy to other senators, but they are the height of discourtesy to the voters who elected a majority of the chamber and expect something other than endless procedural delays.

The real reason senators won’t abolish the personal hold is that they might one day want to exercise the privilege of bogging down the Senate themselves. And in Mr. Tuberville’s case, the use of a “hold” has lately become so weaponized that Democrats knew another Republican would probably step up and continue the blockade in his stead.

On the same day, for example, Senator J.D. Vance, Republican of Ohio, announced that he intended to block all of the Biden administration’s nominees for Justice Department jobs, because he’s angry that the department indicted Mr. Trump for purloining classified military secrets from the White House and then lying to investigators about it.

“If Merrick Garland wants to use these officials to harass Joe Biden’s political opponents, we will grind his department to a halt,” Mr. Vance said of the attorney general. It’s not clear if Mr. Vance somehow expected the department to withdraw the indictment, but whatever his actual demand, his hold will make it much more difficult for the Senate to approve nominations and promotions.

Republicans are hardly the only abusers of this privilege. Senator Bernie Sanders, the Vermont independent, said this month that he would block President Biden’s nominee to be director of the National Institutes of Health until the administration released its plan to lower prescription drug prices. In 2021, Senator Elizabeth Warren, Democrat of Massachusetts, blocked Mr. Biden’s nomination for a top position at the Education Department in a dispute over reforms to the student loan program.

But what’s new about the latest version of these Senate holds is the breadth and long-term nature of their effects. Holds have generally been used in the past to delay a single nominee while calling attention to a related issue, or for a fairly brief period until a point was clearly made. In 2020, Senator Tammy Duckworth, Democrat of Illinois, held up more than 1,000 military promotions to ensure that a witness in the impeachment proceedings against then-President Donald Trump, Lt. Col. Alexander Vindman, got a promotion to colonel that Mr. Trump had tried to block. But she dropped the hold 12 days later after Colonel Vindman retired and she received assurances that he would have been promoted.

By contrast, Mr. Tuberville’s petulant demonstration has been going for more than four months. He announced his blockade in mid-February, holding up at least 150 pending promotions for generals and admirals. Since the Pentagon has no intention of changing its policy — which reimburses military personnel for travel to another state for an abortion because many states have banned the procedure — and since the senator has resisted even the pleas of Republicans to back down, the hold now threatens hundreds more promotions. In a few weeks, the Marine Corps is likely to be without a confirmed leader.

“He is effectively accomplishing what our adversaries could only dream of: denying our military of its leadership and degrading our ability to fight and win the nation’s wars,” said Senator Jack Reed, Democrat of Rhode Island, who leads the Armed Services Committee, in a recent floor speech.

Similarly, Mr. Vance must know the Justice Department will never withdraw the indictment of Mr. Trump, so his blockade of the department’s promotions and executive hires could go on indefinitely, no doubt pleasing Mr. Trump and his supporters. Preventing new federal prosecutors from taking their jobs, however, will eventually have a serious effect on the government’s ability to fight federal crimes and should alarm anyone who cares about the rule of law.

Individual senators gain the power to effectively block nominations by dragging out old and tedious Senate rules of procedure that are in desperate need of an update. Usually, the Senate majority leader brings up batches of routine military promotions and gets unanimous consent to approve them. But if a single senator breaks that unanimity, then each promotion has to be brought up one by one; at two or three days per vote, that can take a great deal of time, far more than the Senate has. In each two-year Congress, there are approximately 65,000 military appointments and promotions and 2,000 civilian nominations for the Senate to consider, and if the vast majority are not approved by unanimous consent, many arms of government will cease to function.

The hold is a cousin of other undemocratic privileges in the Senate, like the blue slip process, which allows home-state senators to block nominations for federal judges, or the filibuster, which raises the threshold for passage of most legislation to 60 votes. Brian Fallon, a former aide to the majority leader, Chuck Schumer, said those kinds of privileges are artifacts of a racist past, used by white Southern senators to prevent passage of civil rights legislation or nominations that might have interfered with their way of life. But lately they are being taken to new heights by the MAGA wing of the Republican Party.

“If one senator is angling to get on Fox News, it gives them an outsized power to gum up the works,” said Mr. Fallon, now executive director of Demand Justice, which advocates the installation of progressive federal judges. “This is why the Democratic Party needs to understand that reforming the Senate is a necessary step to make democracy viable in 2023.”

Reform could be accomplished with a simple majority vote, just as the filibuster was eliminated for executive nominations. Among other methods, the Senate could change the types of vacancies that require its approval to fill, or it could put a time limit on holds. There are many ways that senators could make their chamber a more democratic institution, but first they have to want to do so. For now, they would rather look the other way as extremists turn their body’s courtesies into chains.

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