A strategy to speed up the Senate’s confirmation process
According to reports, Senate Democrats are obstructing President Trump’s executive and judicial nominees at unprecedented rates. In 2019, Senate Republicans used the nuclear option to speed up the confirmation process by reducing the time allowed for debate after senators vote to invoke cloture (i.e., end debate) on a nominee. At the time, Majority Leader Mitch McConnell, R-Ky., diagnosed the Senate’s confirmation process as suffering from “partisan paralysis” and argued that to cure it senators must “rebuild a nominations process that resembles the way things worked for more than two centuries.”
What McConnell failed to acknowledge is that for most of its history, the Senate lacked a rule to end debate on a presidential nomination (or legislation) over senators’ objections. Yet despite lacking a cloture rule to end debate, Senate majorities confirmed nominees (and passed legislation). This underscores a fact that senators and Senate-watchers frequently overlook today: The Senate rules do not require senators to use cloture to end debate on presidential nominations (or legislation).
The Senate’s success at confirming nominees during its pre-cloture period suggests that today’s senators could speed up the confirmation process by adopting strategies not centered on invoking cloture and the nuclear option.
Cloture and Presidential Nominations
The Senate adopted the so-called cloture rule (i.e., Rule XXII) on March 8, 1917 by a vote of 76 to 3. Rule XXII originally applied only to legislation (i.e., bills or measures) pending before the Senate. It did not apply to motions to proceed to the consideration of legislation or to presidential nominations.
During the 81st Congress (1949-1951), the Senate considered a proposal (S. Res. 15) to expand Rule XXII to cover all floor business. After fourteen days of debate, the Senate adopted an amendment to S. Res. 15 that reflected a compromise agreement between proponents and opponents of the original proposal by a vote of 63 to 23. Senators subsequently approved the amended resolution by voice vote. Among its provisions, the amended resolution expanded Rule XXII’s thirty-two-year-old debate limitation so that it applied to “any measure, motion, or other matter pending before the Senate.” In doing so, the resolution applied the cloture process to presidential nominations.
Prior to 1949, the Senate did not have a cloture rule to end debate on presidential nominations. But the Senate confirmed presidential nominations during its pre-cloture period. It did so by allowing senators to debate nominees and, at times, engaging in wars of attrition between their supporters and their opponents. This suggests that McConnell’s call to speed up the Senate’s confirmation process by rebuilding a “process that resembles the way things worked for more than two centuries” does not require invoking cloture on presidential nominations or utilizing the nuclear option to circumvent the Senate’s rules.
The Two-Speech Rule
Senate Republicans can overcome Democratic obstruction of President Trump’s executive and judicial nominations by strictly enforcing Rule XIX. Paragraph 1(a) of Rule XIX states,
“No Senator shall speak more than twice upon any one question in debate on the same legislative day without leave of the Senate, which shall be determined without debate.”
And paragraph 4 of the rule states,
“If any Senator, in speaking or otherwise, in the opinion of the Presiding Officer transgresses the rules of the Senate the Presiding Officer shall, either on his own motion or at the request of any other Senator, call him to order; and when a Senator shall be called to order he shall take his seat, and may not proceed without leave of the Senate”
These two provisions of Rule XIX empower Senate majorities to overcome minority obstruction of presidential nominations without first invoking cloture. Doing so requires the Senate to remain in the same legislative day until filibustering senators have exhausted their ability to speak during a nominee’s consideration (or any other debatable question). This is the point at which senators who are committed to blocking the consideration of the nomination on the Senate floor have given the two speeches allotted to them on the question under the Senate’s rules. At that point, the Presiding Officer may put the question on confirmation (i.e. call for a vote).
Senate precedent defines legislative day as a “day, which continues from the beginning of a day’s session following an adjournment until another adjournment.” A legislative day “is not effected in any way by a recess of the Senate.” A legislative day only ends with the Senate’s adjournment.
This is the point at which senators who are committed to blocking the consideration of the nomination on the Senate floor have given the two speeches allotted to them on the question under the Senate’s rules. At that point, the Presiding Officer may put the question on confirmation (i.e. call for a vote).
In short, each senator may only speak twice in the same legislative day on any one question. Once a senator has given two speeches, that member may not speak again. The Senate votes when there are no senators on the floor who wish to and may speak.
Applying the Two-Speech Rule to Nominations
An objection might be raised that Rule XIX’s bar on senators giving more than two speeches in the same legislative day does not apply to presidential nominations because the Senate considers presidential nominations in executive session rather than legislative session.
The basis of this objection is that according to Senate precedents, “the word ‘day,’ as applied to executive sessions, means a calendar day and not a legislative day.”
Yet a closer look at the actual context of the rulings on which the Senate’s precedents are based reveals (1937 and 1938) that they do not concern the application of Rule XIX to the regulation of debate during the Senate’s consideration of nominations in executive session. Instead, the cases underpinning the precedent stipulate that the word “day” in the context of nominations awaiting Senate consideration means calendar day and not legislative day.
The Senate’s decision in those cases clarify that day means a calendar day when calculating the period of time that must transpire before a nomination can be considered on the Senate floor. In one case, the Presiding Officer stated,
“The Parliamentarian is correct when he says that, as applied to an executive session, each calendar day, regardless of legislative days, is a “day” within the purview of the rule requiring a nomination to lay over 1 day.”
— THE VICE PRESIDENT
In other words, the Senate’s existing precedents do not speak to the prohibition in Rule XIX against senators giving more than two speeches in the same legislative day when the Senate is considering presidential nominations in executive session.
The Senate has not recorded any precedents that would apply the debate restrictions in paragraph 1(a) of Rule XIX differently in executive and legislative sessions. There are no documented precedents that explicitly clarify that the term “legislative day” as used in the rule does not apply to the terms of debate when the Senate is considering presidential nominations.
In addition to the clear text of Rule XIX, there is evidence that senators have long considered the two-speech limit to apply to a legislative day in executive session as well as in legislative session. For example, during the week-long debate on the nomination of Abe Fortas to serve as Chief Justice of the Supreme Court in 1968, the Senate remained in the same legislative day by recessing instead of adjourning at the end of each calendar day. The entire debate occurred on the legislative day of September 24. When measured in calendar days, the debate transpired over a period lasing from September 24 until October 1.
The Senate’s majority leader at the time, Mike Mansfield, D-Mont., understood Rule XIX’s two-speech limitation to apply to the Senate’s consideration of judicial nominations in executive session. The long debate (or filibuster) of the Fortas nomination provided an opportunity for the Democratic majority to use Rule XIX’s two-speech limitation to speed up the confirmation process. However, the majority decided not to strictly enforce the rule. Mansfield reassured his colleagues that it was not his intention “to invoke the two speech rule, or in any way, to hinder the functioning of the Senate as a responsible arm of the government.” Instead, he merely expressed hope that there would “be no long speeches.”
Senators also understood Rule XIX’s two-speech limitation to apply during the Senate’s consideration of the nomination of Stephen Breyer to serve on the Court of Appeals for the First Circuit. As with the Fortas nomination, the entire debate on the Breyer nomination occurred on the same legislative day (November 20). When measured in calendar days, the debate transpired over a period lasting from December 2 until December 9.
During the debate, Edward M. Kennedy, D-Mass., and Gordon J. Humphrey, R-NH, propounded unanimous consent requests on the Senate floor that their remarks not count against them for the purposes of enforcing Rule XIX’s two-speech limitation. While it could be argued that both Kennedy and Humphrey were concerned that a second speech would preclude them from giving further remarks later during the same calendar day, Humphrey propounded a unanimous consent request that clarified his understanding regarding the application of Rule XIX’s two-speech limitation in executive session. Specifically, Humphrey was concerned about his ability to speak again in the same legislative day instead of the same calendar day.
“I ask unanimous consent that my next speech be considered a continuation of the first speech on the legislative day.”
— GORDON J. HUMPHREY
Kennedy’s unanimous consent request appears to be similarly concerned about Rule XIX limiting his ability to speak on the Senate floor given that the floor debate occurred over one legislative day and several calendar days.
“Mr. President, I ask unanimous consent that my remarks be considered as a continuation of my speech on yesterday, so far as the rules are concerned.”
— EDWARD M. KENNEDY
It is important to note that even granting the calendar day-legislative day distinction does not preclude Senate majorities from limiting minority obstruction by strictly enforcing Rule XIX’s two-speech limitation during the consideration of presidential nominations. The Senate can legitimately change the precedents governing how senators apply Rule XIX in specific instances without having to use the nuclear option to circumvent the rules altogether. This is because the Senate’s precedents can be changed in a manner consistent with its Standing Rules by a simple-majority vote as long as doing so does not change, circumvent, contradict, or otherwise ignore the specific provisions of those rules.
Adjudicating precedent in this way is not inherently destructive of the Senate’s Standing Rules. Historically, senators challenged precedent with much greater frequency than they have done in recent years. For example, the Senate conducted 238 recorded votes in relation to 213 appeals of the Presiding Officer’s rulings between 1965 and 1986. That represents 2.4 percent of all recorded votes during the 22-year period. On average, a senator appealed the ruling of the Presiding Officer and requested a recorded vote at a rate of one for every 113 hours or one for every 17 days of session. The Senate thus regularly decided questions of order on an appeal after the Presiding Officer ruled.