Republicans are responsible for confirmation process slowdown
A review of the Senate confirmation process in the 115th and 116th Congresses indicates that President Trump’s judicial nominees received more Democratic support than the standard view assumes. In short, the Senate confirmed only 10 percent of the president’s judicial nominees on a party-line vote in the 115th Congress. The percentage of judicial nominees confirmed on a party-line vote by the Senate rose to 26 percent in the 116th Congress. In contrast, 90 percent of Trump’s judicial nominees received bipartisan support in the 115th Congress, and 74 percent received different levels of bipartisan support in the 116th Congress (as of June 8, 2020).
These numbers suggest that Democratic obstruction is not the primary cause of the reported slowdown in the confirmation process over the last four years. A closer look at the data indicates that how Republicans manage the Senate floor is instead mostly responsible for that slowdown. This finding belies public statements by Majority Leader Mitch McConnell, R-Ky., that his top priority since 2017 has been to confirm as many of Trump’s judicial nominees as possible in the shortest time.
Rule XXII of the Standing Rules of the Senate requires an affirmative vote of “three-fifths of the Senators duly chosen and sworn” (typically 60) to end debate (i.e., to invoke cloture) on a judicial nomination. However, Senate Democrats explicitly violated Rule XXII in November 2013 when they used the nuclear option to reduce the number of affirmative votes to end debate on “all nominations other than for the Supreme Court” to a simple majority of senators present and voting (typically 51).
Senate Republicans likewise explicitly violated Rule XXII in April 2017 when they used the nuclear option to lower the number of affirmative votes needed to end debate on a Supreme Court nomination to a simple majority of senators present and voting. Senate Republicans again violated Rule XXII in April 2019 when they used the nuclear option to shorten the maximum amount of debate permitted under the rule after the Senate has invoked cloture on a nomination before a final vote to confirm that nominee.
In each of these episodes, Senate majorities created a new precedent that is inconsistent with Rule XXII. The Senate did not change the rule itself in any of them. It still technically requires an affirmative vote of “three-fifths of the Senators duly chosen and sworn” to end debate on a judicial nominee. And the rule even stipulates that the maximum amount of debate time available after the Senate has invoked cloture on a nominee cannot exceed 30 hours. The Senate merely chooses to follow these precedents instead of its written rules whenever it considers the president’s judicial nominees.
New Precedents Limit Minority’s Ability to Obstruct
The effect of these precedents is to eliminate an organized minority’s ability to obstruct a judicial nominee by voting en bloc against invoking cloture. The 2019 precedent also limits significantly a minority’s ability to delay an up-or-down confirmation vote after the Senate has invoked cloture on a nominee.
These three precedents suggest that today’s confirmation process should be faster, not slower than it was in the past. But a recent Politico report claims that despite “these incremental changes to the Senate rules to speed confirmation of nominees…it’s become essentially impossible for Trump to fully staff his administration.”
Considering the level of bipartisan support for the president’s judicial nominees along with these changes to speed up the confirmation process suggests that Democratic obstruction and the Senate’s rules are not responsible for the slowdown. Instead, it appears that how McConnell and his Republican colleagues manage the Senate floor is mostly responsible for the delay in the confirmation process.
How the Rules Really Work
Republicans could speed up the confirmation process by enforcing the Senate’s existing rules and practices.
The Motion to Proceed
Once the Judiciary Committee- which Republicans currently control- reports a nominee to the full Senate, the nomination is placed on the Executive Calendar. At that point, any senator- not just the majority leader- may offer a nondebatable motion to proceed to the nomination. Senators cannot filibuster the motion to begin debate on the nomination. Consequently, the Senate votes on whether to start that debate immediately after a senator makes a motion to proceed to the consideration of a particular nomination. A simple majority of senators present and voting (typically 51) is required to approve the motion and begin debate on the nominee.
The Senate is not required to first invoke cloture on a judicial nomination before holding an up-or-down vote on whether to confirm the nominee. This is because the filibuster is not a veto. It merely grants a senator (or senators) the opportunity to speak on the Senate floor for as long as he or she is able.
Using the filibuster to delay a confirmation vote on a judicial nominee without the majority’s cooperation requires the minority’s senators to expend considerable effort to succeed. As such, the filibuster cannot cause gridlock in the confirmation process as alleged by the Politico report because the minority and majority sides in a debate are not evenly matched in terms of the effort their members are willing to expend to prevail. One side or the other must always prevail in a debate. Whichever side wins, in the end, is, by definition, the side with more members. In situations where the minority prevails, its members successfully altered the terms of the debate such that a majority of senators were unwilling to expend the effort required to prevail in it. In those instances, the minority deprived the majority of a majority of the Senate’s members.
Given the Democrats’ past support for Trump’s judicial nominees, it is unlikely that they could successfully filibuster a nominee if the Republicans forced them to hold the floor and talk.
Understanding why the filibuster is not a veto requires a closer look at how it operates in practice. Of course, a senator may use the filibuster to temporarily delay his or her colleagues from voting to confirm a judicial nominee by speaking on the floor. As long as that senator has the floor, the Senate’s presiding officer may not put the question to a vote (i.e., to confirm the nominee). Senate precedents stipulate, “When there is a debatable matter before the Senate and debate is not limited [e.g., by a unanimous consent agreement or cloture], a Senator who has been recognized may proceed without interruption. Under those circumstances, a Senator may keep the floor as long as he or she remains standing and continues to debate.”
But a senator cannot prevent the Senate from voting in perpetuity, strictly speaking, because he or she cannot talk indefinitely. This is because of the physical and opportunity costs filibustering senators must bear to do so and the procedural limitations in the Senate’s existing rules and practices (e.g., Rule XIX).
When a senator is no longer able to speak, he or she has no choice but to yield the floor. At that point, the Senate votes on whether to confirm the judicial nominee in question unless another senator seeks recognition and speaks for as long as he or she is able. While the length of the delay in the confirmation process is proportional to the number of senators who are willing and able to participate in a filibuster, there is no point at which it is delayed indefinitely. Individual senators can only speak for a finite period.
When no senator seeks recognition (i.e., no longer wants to, or can, speak), the Senate’s presiding officer must put the question (i.e., call a vote). According to the Senate’s precedents, “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.”
This is how the Senate conducted its business before 1917 when it first adopted a rule to end the debate over the objections of senators willing and able to speak on the Senate floor. Narrow Senate majorities regularly passed legislation and confirmed nominees over the objections of a minority in the absence of a rule to end debate throughout the nineteenth century. The filibuster did not operate like a veto during that period because Senate majorities did not allow it to work in that way.
Recent experience suggests that Republicans are not interested in using the Senate rules to speed up the confirmation process because they are unwilling to expend the effort required to wait out Democrats’ attempts to slow it down. Instead, they file cloture on judicial nominees as soon as McConnell moves to their consideration on the Senate floor. In doing so, Republicans schedule a vote to end debate on the underlying nominee two days later. Even after filing cloture, Republicans remain unwilling to force Democrats to expend effort to delay the confirmation process by requiring them to stand and talk on the Senate floor for those two days before the cloture vote.
Several points suggest that were Republicans willing to expend effort, the confirmation process would proceed more quickly. First, as noted, Democrats united in opposing Trump’s judicial nominees only 10 percent of the time in the 115thCongress and 26 percent of the time in the 116th Congress. The varying levels of Democratic support for the vast majority of judicial nominees (ranging from 1 Democrat to more than 40 Democrats) reduce the number of senators willing to actively participate in a filibuster.
Second, it is illogical to assume that filibustering requires more effort of senators than not filibustering. Common sense suggests that giving a speech on the Senate floor for hours is more daunting to senators than waiting nearby while some other senator gives a speech on the floor for hours.
Third, all senators may face opportunity costs in this scenario. For example, all senators want to see action on numerous other priorities in a given Congress (even though the Senate has done very little over the last four years). Senators also face significant demands on their time associated with fundraising and performing various services for constituents. And most senators at present want to spend as little time in Washington as possible. But only the filibustering senator bears the extreme physical costs associated with standing up and talking for hours, if not days, without a break. Filibustering senators also face exposure to nation-wide embarrassment because their marathon speech is televised and receives more coverage the longer it lasts.
Had Republicans been willing to expend the necessary effort to make it harder for Democrats to obstruct Trump’s judicial nominees over the last four years, they would likely have prevailed in shortening the time required to confirm most of those nominees. This is because the Democrats appeared unwilling from the beginning to expend significant effort simply to delay the otherwise certain confirmation of Trump’s nominees in most cases.
When asked in early 2017 if it was realistic to expect Democrats to continue delaying the confirmation process after Republicans kept the Senate in an around-the-clock session for just two days, Chris Murphy, D-Conn., answered, “I’m exhausted. And it is hard to understand how this pace continues.”
Instead of forcing Democrats to work through their exhaustion to delay the confirmation process, Republicans opted for the easier path of filing cloture, waiting two days, and locking in debate and voting times by unanimous consent. For example, Republicans used cloture to end “debate” on judicial nominees 47 times (60 percent) in the 115th Congress and 104 times (94 percent) in the 116th Congress.
Republicans also made it easier on the Democrats opposed to Trump’s judicial nominees to delay the confirmation process on most occasions. For example, they scheduled debate time and/or final vote times by unanimous consent during the consideration of 60 nominees (76 percent) in the 115th Congress and 104 nominees (94 percent) in the 116th Congress. Locking-in a minimum amount of debate time in which senators are not required to hold the floor and to schedule a time for a final confirmation vote before which it cannot occur alleviates the burden Democrats must bear to delay the confirmation process.
A review of the confirmation process in the 115th and 116th Congresses suggests that Republicans are mostly responsible for the delay in confirming President Trump’s judicial nominees. How McConnell and his Republican colleagues manage the Senate floor makes it easier for the handful of Democrats who appear willing to filibuster those nominees to slow down the process. The data also suggests that Republicans’ decision to go nuclear in 2019 was unnecessary for speeding up the confirmation process and that the controversial maneuver has not had the intended effect.