Nuclearization: Senate Republicans Shorten Floor Debate Time For Certain Judicial And Executive Nominees

As The Daily Wire has reported before, Senate Republicans over the last month have carefully prepared the foundation for using the “nuclear option” to lower the Senate floor debate time from 30 hours to two hours for federal district court judicial nominees and lower-level Executive Branch nominees. The Daily Wire reported last month:

For much of the past decade, the U.S. Senate has been involved in a bipartisan one-way ratchet to make the judicial advice and consent process easier to execute for the majority party. In 2013, then-Senate Majority Leader Harry Reid (D-NV) went “nuclear” and eliminated the judicial filibuster for lower federal court judicial nominees. In 2017, during the Neil Gorsuch Supreme Court confirmation debate, McConnell eliminated the same judicial filibuster for Supreme Court nominees.

Many conservatives and conservative groups have been pushing for McConnell to further up the ante, as Senate Democrats have tried their best to stall out much of the Trump Administration’s Judicial Branch and Executive Branch confirmation agenda.

Yesterday, by a 51-48 vote — with the unusual pairing of hardliner Sen. Mike Lee (R-UT) and notorious moderate Sen. Susan Collins (R-ME) being the only two Republican defections — Senate Majority Leader Mitch McConnell (R-KY) and his Republican caucus invoked the “nuclear option” to formally lower Senate floor debate for the aforementioned nominees. Politico reports:

Senate Republicans used the “nuclear option” Wednesday to unilaterally reduce debate time on most presidential nominees, the latest in a series of changes to the fabric of the Senate to dilute the power of the minority.

The move by Senate Majority Leader Mitch McConnell (R-Ky.) immediately paves the way to expedite confirmations of President Donald Trump’s judicial and executive branch picks and comes amid deep GOP frustration with Democrats’ delays. Future presidents will benefit, too, though McConnell and Trump stand to gain inordinately as they seek to fill 130 District Court vacancies during the 18 months before the 2020 elections.

As noted by NBC News, the move is intended to expedite the confirmation of many of President Trump’s judicial and Executive Branch nominees. Whereas the Trump Administration has confirmed federal appellate court judges at a record-setting pace, its relative prioritization of appellate court nominees has left a large number of unconfirmed district court judges. As Politico notes, there are currently a whopping 130 district court vacancies. McConnell’s gambit could have an incremental effect in mildly nudging along that tedious process.

Conservatives have not all been on the same page in terms of Senate Republicans’ latest invocation of a “nuclear option.” Erick Erickson, editor of The Resurgent, has vocally opposed the move. Rachel Bovard, a former top Senate staffer for Sen. Rand Paul (R-KY), has also opposed it.

But in a lengthy tweet thread yesterday, Republican lobbyist/strategist and former Senate Judiciary Committee counsel Steven Duffield made a compelling case as to why McConnell’s move amounts to not being a big deal at all. Ed Whelan neatly summarized (and slightly edited) Duffield’s tweet thread at National Review’s “Bench Memos” blog:

The handwringing from the Left on today’s Senate procedural changes is utter nonsense. In lay terms, all the Senate is doing is establishing that, once district court or (most) sub-Cabinet nominations have been open to debate for 2 hours, a final vote will occur (absent unanimous consent for more time). That’s it.

Today, the nominations are open for debate for up to 30 hours. Now it will be 2 hours. How many hours are needed? The easiest way to figure that out is to say, well, how many hours have typically been used to debate these types of nominations?

Guess what? The answer is … something less than 15 minutes. That’s the typical amount of time senators usually take to debate district court nominations, and it’s often ZERO minutes of debate. They just vote.

In fact, up until 2003 (when I did my historical research because of the Schumer campaign against the nomination of Miguel Estrada to the D.C. Circuit), there had only been a handful of *recorded votes* EVER on district court nominations. Confirmation was by voice vote, often en bloc.

As a Senate counsel, I read a lot of the Congressional Record on this question. You can’t see exact time stamps, but I’m pretty confident that there’s never been more than 2-3 hours of actual floor debate EVER on a district court nomination. *Maybe* once or twice. Certainly it’s true that at NO point in U.S. history have Senators actually debated a federal district court nomination for anything NEAR 30 hours.

Okay, you say, but debate might be really important. What if a true Monster is being nominated and only one Senator can see s/he was a Monster and desperately wants to make a case against that nomination?

Easy solutions. Remember there are MONTHS ahead of the final vote (pre-nomination, pre-hearing, hearing, time to mark-up, then time until floor consideration is scheduled). During all that time, senators can speak on the Senate floor (and elsewhere) and argue against a nomination. They are NOT limited to the “post cloture debate time” impacted here. Nobody is being silenced.

More importantly, if a senator actually wants to debate a nominee and needs more time, s/he’s going to be able to get unanimous consent to make the case, as long as the UC request is in good faith. That’s just Senate culture.

What we have here is a norm restoration. We had a situation where Democrats used the 30 hour standard to block any other Senate business from taking place. Senate Rs are just restoring the traditional floor consideration of district court nominations.

Obviously the minority always wants to chew hours off the Senate calendar. That prevents more confirmations, and it prevents time for legislation. The minority lost an obstruction tool, not debate opportunity itself. Not in any real world way.

The practical effect here is that mostly non-controversial nominations will now get votes because more time is available and the Senate will be more productive. This is great for the courts and even more important for the sub-Cabinet nominations. …