The Senate inched closer Tuesday to Republicans using the “nuclear option” to slash the time for debate on the vast majority of judicial and executive nominations.
Senators blocked, 51-48, an effort by Majority Leader Mitch McConnell to bring up a resolution that would have set a new standing order. The support of 60 senators would have been needed to advance the debate.
It came as part of the never-ending debate over confirmation delays, particularly on lower-level executive branch nominations and district judges.
The resolution picked up steam as the GOP has fumed that Democrats have periodically required the use of all 30 hours after cutting off debate on President Donald Trump’s nominations. McConnell has prioritized a makeover of the federal judiciary, pushing federal appeals courts in a more conservative direction through confirmation of Trump nominees.
The effort to change the rules will allow the Kentucky Republican to turn the Senate’s attention to district courts.
The vote likely sets up an effort later this week by McConnell to use the nuclear option to change the relevant rules and precedents by overturning the ruling of the presiding officer through a simple majority vote.
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So it begins
The majority leader started the gears turning toward that possibility Monday afternoon, when he filed cloture motions to break possible filibusters of Trump’s nominations of Jeffrey Kessler to be an assistant secretary of Commerce and Roy Kalman Altman to be a federal district judge based in South Florida. Both Kessler and Altman would qualify for the expedited consideration if GOP senators move to change the rules.
The new procedure outlined in the resolution from Senate Rules and Administration Chairman Roy Blunt and Oklahoma Republican James Lankford would allow up to two hours of debate after cloture is invoked to end filibuster threats against nominees to be federal district judges as well as most executive branch posts.
Federal appeals judges, members of some boards and commissions, as well as Cabinet-level executive branch nominations would still be subject to as many as 30 hours of post-cloture debate.
Senate Republicans huddled on the way forward late Tuesday afternoon, though Blunt said it was largely to discuss tactics, since overturning the opinion of the presiding officer is a different process from adopting a resolution.
“You can’t just tell the parliamentarian, ‘No, we think the Blunt-Lankford bill is actually the rule, no matter what you think,’” the Missouri Republican said. “But you can challenge their view of how [many] hours it takes to do a given thing.”
Blunt suggested there could be a series of roll call votes on procedural challenges.
“We don’t want to change the 30 hours for the things that really have been 30 hours even, when we had the temporary standing order in 2013, so it can’t just be one sledgehammer,” he said.
As 2020 approaches
Republicans like Lankford had argued that Democrats running for president in 2020 should embrace the opportunity to make it easier to confirm presidential nominees so they could fill out their own administrations if any of them were to move into the White House in 2021.
“It only takes one senator to request a cloture vote, and so it’s hard to imagine that there wouldn’t be at least one Republican that would look at each of those different nominees that come up, after what was done for four years to a Republican president,” Lankford said in an interview earlier this year.
McConnell himself echoed that warning Tuesday morning.
“Today, it may be Senate Democrats who are intent on endlessly relitigating the 2016 election and holding up all these qualified people. But absent a change, these tactics seem guaranteed to become standard practice for Senate minorities on both sides,” he said on the Senate floor. “I don’t think any of us want that future.”
But senior Democrats wanted none of that argument. Sen. Patrick J. Leahy of Vermont, a former chairman of the Judiciary Committee, insisted the motivation was more about ideology than the institution.
“It is a short-sighted, partisan power grab. And it is motivated by the far right’s desire to flood the federal judiciary with young, ideological nominees, many of whom — as we have seen time and again in the Judiciary Committee — are simply unqualified to serve on our nation’s courts,” Leahy said.“Post-cloture time is a critical tool for senators, especially those who do not sit on the Judiciary Committee, to vet nominees for lifetime judgeships.”
Under the new process, the onus will be on senators and their staffs to review nominations a little earlier in the legislative process — perhaps on the intervening day after McConnell has moved to limit debate.
McConnell has reportedly previously told his conference that he would have the votes to proceed with the nuclear option if Democrats do not get onboard. But, there’s certainly one proposed change that Republicans will not entertain.
“I have heard that the only change the Democrat leadership has proposed is to delay the effective date of the standing order until the start of the next presidential term,” former Senate Judiciary Chairman Charles E. Grassley of Iowa said. “Presumably, that’s due to the same hubris that led them to invoke the nuclear option without imagining that they would soon regret it.”