(Editor's Note: This piece first appeared in the Washington Examiner on March 26, 2018).
Republicans are growing impatient with the Senate’s pace in processing President Trump’s judicial and executive branch nominations, and they blame Democrats for the delay.
Technically, Senate minorities are no longer able to single-handedly block a confirmation vote for a presidential nomination, thanks to Democrats triggering the nuclear option in 2013 to lower the threshold for invoking cloture on all nominations (other than for the Supreme Court) from three-fifths of senators to a “majority-vote.” The 2013 nuclear option eliminated the supermajority filibuster for most nominations. Republicans followed suit in 2017, using the maneuver to eliminate the minority’s ability to filibuster Supreme Court nominees.
Yet despite these changes, Senate rules still allow senators to delay the process after cloture has been invoked – by dragging out the time permitted under the rules before the final confirmation vote.
Republicans are accusing Democrats of abusing this provision by allowing the maximum amount of time (30 hours) to pass before letting the Senate confirm each nominee. Majority Leader Mitch McConnell, R-Ky., for example, recently admonished his Democratic colleagues for slowing work on the nomination of William L. Campbell Jr. to serve as a district judge for the Middle District of Tennessee. “So why will their four nominations consume a week of the Senate’s attention?” he asked rhetorically. “The reason is that Senate Democrats are choosing, for partisan reasons, to make these nominations take as long as possible.”
Frustration with the status quo is mounting among Republicans. Trump recently called on his party to change the rules to shorten the time Democrats can prolong consideration of nominees after cloture has been invoked. Several Senate Republicans are also pushing their colleagues to use the nuclear option to make this change over Democrats’ objections. Sen. Ron Johnson, R-Wis., recently asserted that obstruction has “completely gotten out of hand.” According to Sen. Pat Roberts, R-Kan., “Thirty hours is just too much. You have cloture motion filed on a nominee and the nominee gets 98 votes and then you wait 30 hours for nothing else but to slow the process down.”
But contrary to Republican finger-pointing, the Senate’s unhurried pace is not due solely to Democratic obstruction. On closer inspection, it turns out that Republicans are also to blame for the status quo. Specifically, the way in which McConnell and his Republican colleagues have structured the confirmation process this Congress has empowered Democrats to delay work on otherwise uncontroversial nominees.
Given their role in the matter, Senate Republicans could speed things up. To do so, they must refuse to cooperate with Democrats in delaying presidential nominations and instead enforce the Senate’s existing rules governing the confirmation process.
The rules governing post-cloture time are as follows: Once the Senate votes to end debate on a nomination, that nominee remains before the Senate “to the exclusion of all other business until disposed of.” The rules also limit post-cloture time to no more than 30 hours and stipulate that “no senator shall be entitled to speak in all more than one hour on … the matter pending before the Senate” during that period. Notably, the rules do not require post-cloture time to last for 30 hours; a confirmation vote can occur earlier if no senator wants and is able to speak.
Yet Republicans regularly move to waive these provisions by unanimous consent. For example, McConnell and his colleagues routinely ask unanimous consent immediately after the Senate votes regarding one of Trump’s nominations that the Senate instead “proceed to legislative session for a period of morning business with senators permitted to speak therein for up to 10 minutes each.” In other words, instead of keeping the nomination in question pending before the Senate to speed up the confirmation process, Republicans seek Democrats’ permission to suspend consideration. And they have done this on 7 out of the 15 nominees on which cloture was filed between January 1 and March 19 of this year.
Senate Republicans also lock in confirmation votes, usually for the following day and sometimes even several days later, despite the fact that the rules don’t require 30 hours to transpire after cloture has been invoked. In doing so, they effectively make 30 hours the minimum, rather than the maximum, time that must elapse before a nominee can be confirmed.
And they don’t stop there. Coupled with such consent requests, Republicans also make it easier for Democrats to impede the nomination process by asking unanimous consent that all time “during recess, adjournment, morning business, and leader remarks count post-cloture” for the nominee in question. Under the Senate’s rules, post-cloture time is only required if a senator wants to speak. By letting such time run when the Senate isn’t in session, Republicans make it possible for Democrats to delay nominees without speaking. They have done this on 9 of the 15 nominees on which cloture was needed between Jan. 1 and March 19 of this year.
Republicans also slow down the confirmation process themselves by preventing the Senate’s presiding officer from calling a vote whenever a member isn’t speaking on the Senate floor.
The Senate’s precedents state, “When a senator yields the floor and no other senator seeks recognition, and there is no order of the Senate to the contrary, the Presiding Officer must put the pending question to a vote.” In other words, the Senate should vote immediately on a nominee if no one is speaking.
Yet Republicans routinely prevent the Senate from doing so by suggesting the absence of a quorum whenever they finish giving a speech on the floor. Doing so effectively suspends Senate business until another member comes to the floor to speak. While the Senate is in a quorum call, the Presiding Officer can’t call a vote on the nominee under consideration. From January 1 to March 19, 13 Republicans ended their speeches by suggesting the absence of a quorum during the consideration of one of Trump’s nominations on 20 different occasions. By preventing the presiding officer from calling for a vote in these situations, Republicans are effectively delaying Trump’s nominees.
To be sure, Democrats are slowing down the confirmation process. But that is no excuse for Republicans to make it easier for them to do so, much less to block Trump’s nominees themselves.
Acknowledging how the Senate’s existing rules can be used to speed up the confirmation process highlights the disconnect between Republican rhetoric about Democrats’ obstruction and the reality of the situation. Before using the nuclear option to again break the rules, Senate Republicans should, at a minimum, make it as difficult as possible for Democrats to delay the confirmation process. And they should stop contributing to the delay.