Republicans go nuclear: An after action report

Republicans in the Senate finally acted to change the rules to speed up the confirmation process for some presidential nominations. They used the nuclear option to shorten the amount of time permitted under the rules after the Senate has invoked cloture on a nominee but before a final confirmation vote. (The nuclear option refers to a procedural maneuver that empowers a Senate majority to ignore, circumvent, or change the rules with a simple majority vote in direct violation of those rules. In this instance, Republicans wanted to change the provision of Rule XXII that caps so-called post-cloture time at thirty hours.)

How Republicans went nuclear

Republicans initially wanted to use the nuclear option to pass a resolution, authored by Roy Blunt, R-Mo., and James Lankford, R-Okla., that would have lowered the cap on post-cloture debate time to just two hours for all presidential nominations other than those to fill positions on the Supreme Court, circuit courts, or in the Cabinet. However, Majority Leader Mitch McConnell, R-Ky., appeared to opt for a different approach at the last minute in response to two concerns of rank-and-file Republicans.

First, Republican senators appear to have been concerned about a provision in the Blunt-Lankford resolution that would have divided post-cloture debate time between the majority leader (i.e., McConnell) and the minority leader (i.e., Chuck Schumer, D-NY) for all other nominations not subject to the two-hour cap. This provision, if adopted, would have empowered McConnell and Schumer to prevent senators from speaking on the Senate floor during post-cloture debate of nominees to fill positions on the Supreme Court, circuit courts, and in the Cabinet.

Second, some Republicans appear to have been concerned that forcing the Blunt-Lankford resolution through the Senate over Democrats’ objections using the nuclear option would have required them to abolish the legislative filibuster in the process. This is because the Senate would be considering the resolution in Legislative Session. Consequently, using the nuclear option to end a filibuster of the resolution would, in effect, abolish the filibuster during consideration of some or all legislative business moving forward.

McConnell got around both concerns by instead using a point of order approach to set up the nuclear option for Republicans to only lower the cap on post-cloture debate time to two hours for some executive and judicial nominations.

Executive Nominations

McConnell first raised a point of order to shorten debate time for the covered executive branch nominations during post-cloture consideration of the nomination of Jeffrey Kessler to be an Assistant Secretary of Commerce.

Less than one hour after the Senate voted to invoke cloture on the Altman nomination, McConnell raised a point of order to set up the nuclear option.

“Mr. President, I raise a point of order that the postcloture time under rule XXII for all judicial nominations, other than circuit courts or Supreme Court of the United States, is 2 hours.”

-McConnell

As before, the Presiding Officer ruled that McConnell’s point of order was invalid because Rule XXII explicitly states that post-cloture debate time for all judicial nominations may last up to thirty hours.

“Under rule XXII of the Standing Rules of the Senate, the point of order is not sustained.”

-Presiding Officer

McConnell then set up the nuclear option by once again appealing the ruling of the chair.

“I appeal the ruling of the Chair and ask for the yeas and nays.”

-McConnell

As before, senators proceeded after McConnell’s appeal to vote 48 to 51 that the Presiding Officer’s ruling did stand as the judgment of the Senate. Susan Collins, R-Maine, and Mike Lee, R-Utah, joined almost all Democrats in voting to uphold the ruling (Kamala Harris, D-Calif., was absent and did not vote). All other Republicans voted to overturn the Presiding Officer’s judgment (i.e., they voted in support of the nuclear option).

Assessing the result

As a result of Republicans’ going nuclear, debate time on covered presidential nominations is now limited to just two hours after the Senate invokes cloture. While it is still too early to fully evaluate the efficacy of the rules change when it comes to speeding up the confirmation process, the first steps taken by Republicans after going nuclear suggests that its impact will be minimal.

Republicans invoked the nuclear option to change the rules governing post-cloture debate time on judicial nominations at 5:49 pm on Wednesday, April 3. Under the terms of McConnell’s point of order, a confirmation vote on the Altman nomination should have occurred no later than 7:49 pm- two hours after Republicans first went nuclear. However, immediately after Republicans voted to change the rules, McConnell asked unanimous consent to postpone the confirmation vote on the Altman nomination until 11:45 am on Thursday, April 4. In doing so, McConnell effectively delayed the confirmation process in this instance by approximately sixteen hours.

This suggests that, contrary to Republicans’ accusations, Democrats were not solely responsible for delaying the confirmation process. Even before they went nuclear to speed up the Senate’s consideration of the Kessler and Altman nominations, Republicans routinely scheduled confirmation votes for judicial nominees by unanimous consent, usually for the following day, but sometimes even several days later. In doing so, Republicans, in effect, made thirty hours the minimum, rather than the maximum, time that must elapse before the Senate can vote to confirm a nominee. Any amount of time short of that now required the consent of all senators. By adopting this procedural posture, Republicans gave Democrats a veto over when the Senate voted during consideration of 43 of the 48 nominees on which a cloture vote was necessary in 2017 and 2018. This does not appear to have changed.

Consequences of the nuclear option

Republicans’ utilization of the nuclear option in these two instances could have two significant consequences for how the Senate operates moving forward. First, the specific nature of how Republicans went nuclear may essentially eliminate debate time for the presidential nominations covered by their rule change. This is because Republicans typically file cloture on several nominees at one time. For example, consider that McConnell filed six cloture motions on Thursday to end debate on the following nominations:

1. Daniel Desmond Domenico, of Colorado, to be United States District Judge for the District of Colorado;
2. Patrick R. Wyrick, of Oklahoma, to be United States District Judge for the Western District of Oklahoma;
3. Cheryl Marie Stanton, of South Carolina, to be Administrator of the Wage and Hour Division, Department of Labor;
4. John P. Abizaid, of Nevada, to be Ambassador Extraordinary and Plenipotentiary of the United States of America to the Kingdom of Saudi Arabia;
5. Holly A. Brady, of Indiana, to be United States District Judge for the Northern District of Indiana;
6. David Steven Morales, of Texas, to be United States District Judge for the Southern District of Texas.

All of these nominees are subject to the new two-hour cap on post-cloture debate time. And only one of them (the Domenico nomination) will be debated before the Senate votes to invoke cloture on them. Put differently, senators will be unable to debate the other five nominees before they are forced to vote on cloture because of how McConnell structured the process.

While Rule XXII stipulates that a cloture vote cannot occur until “one after the Senate meets” two days later, the so-called intervening day only applies to the first cloture motion filed in the series. All other cloture votes will occur immediately after the Senate votes to confirm the prior nominee in the series. According to the Senate’s precedents,

“When two motions to invoke cloture are filed on the same day, the vote will first occur on the motion on which was filed first, and if the first motion succeeds the second motion will not be voted upon until the matter upon which cloture was invoked had been disposed of.”

-Riddick’s Senate Procedure

Consequently, all nominees other than the first one in the series will receive a maximum of two hours of debate under the terms of McConnell’s two points of order. In voting in support of McConnell’s points of order, senators not on the relevant committee of jurisdiction, and not in leadership, radically reduced the role they are allowed to play in the confirmation process to merely voting yes or no at its end. In short, they relegated themselves to rubber stamps.

Second, the two points of order raised by McConnell to set up the nuclear option during consideration of the Kessler and Altman nominations appear to have created two new precedents that senators can use in the future to delay the Senate’s business or to force their colleagues to cast votes on questions they would otherwise prefer to avoid. Rule XX stipulates, “A question of order may be raised at any stage of the proceedings.” However, the Senate’s precedents specify more clearly the circumstances in which the Presiding Officer is obliged to rule on a senator’s point of order.

“Points of order or questions of order are directed against present actions being taken or proposed to be taken by the Senate and deemed to be contrary to the rules, practices, and precedents of the Senate.”

-Riddick’s Senate Procedure

Put simply, something must happen against which a senator may raise a point of order. This was stated clearly by the Presiding Officer in 1961. “A point of order cannot be made against a transaction until it has occurred.” In the absence of a transaction or event, the Presiding Officer may decline to rule on a senator’s point of order.

The Presiding Officer has also declined to rule on the point of order raised by a senator against an event that may happen but has not yet occurred. In 1972, the Presiding Officer declined to rule on the point of order raised by James Allen, D-Ala., observing, “The Chair is not prepared to rule in anticipation on some event that might occur in the future.” In such instances, there is no ruling for senators to appeal. This limits senators’ ability to use points of order raised against imaginary transactions and hypothetical events that have not yet occurred as a mechanism to delay the Senate’s business or force their colleagues to cast votes. In the past, the Presiding Officer has even denied a senator the right to make a point of order in such circumstances.

Notwithstanding all of this, McConnell raised two points of order even though a transaction against which the point of order could conceivably lie had not occurred. Also if the expiration of two hours of post-cloture debate time constituted such an event (and it is not clear that it does), McConnell raised his points of order before the event (i.e., the passage of two hours) had occurred. McConnell raised a point of order during post-cloture consideration of the Kessler nomination after only one hour of debate time had elapsed. Similarly, McConnell raised a point of order during post-cloture consideration of the Altman nomination less than one hour after the Senate voted to invoke cloture on the nominee. Consequently, the Presiding Officer’s decision to rule on McConnell’s points of order created two new precedents that expand significantly the instances in which senators may force votes by raising similar points of order based on imaginary transactions and hypothetical events moving forward.