Senate Majority Leader Mitch McConnell (R-Ky.) last week took the extraordinary step—in response to Democrats’ obstruction of President Trump’s nominees—of using the “nuclear option” to shorten debate time for judicial and executive nominees.
I’ve written at length about why this is a bad idea, most recently here and here.
Prior to this action, the Senate allowed for up to 30 hours of debate on the nominees. Democrats actually have never used that time for debate, but the Senate has been allowing the 30 hours to run even without debate. McConnell had remedies for this sort of inaction that would have fallen well short of going nuclear.
The Senate’s rules already allow a determined majority to speed up confirmations; this Senate is just too lazy to use them. Second, there are long-term consequences for consistently using the nuclear option as a problem-solving tool, and those consequences are likely to diminish minority rights in the Senate—critical for conservatives, who are always in the minority, even when Republicans have the majority.
I’ve also argued that this Senate is so epically lazy (they work 2.5 days a week; Monday night through Thursday afternoon) that even violating the Senate’s rules won’t help.
Case in point: after using the nuclear option to shorten the 30 hours of debate time to two for a district court judge—for the stated reason that they need to speed up confirmations—the Senate postponed their votes until the next day.
To put a finer point on it, here’s what the last half of the Senate’s week looked like. On Wednesday night, immediately after postponing their final vote at 5:15 p.m., the senators finished for the evening and scurried off to catch early-bird dinners. They went home and set their alarms so they could be ready to start again on Thursday, for three 15-minute votes, scheduled for 11:45 a.m. The Senate’s workweek then ended at 3:00 p.m. on Thursday.
It turns out the nuclear option can only go so far. It cannot, for example, overcome the inertia of senators who just don’t want to work.
Nine Weeks to Confirm Them All
Though I do not believe it was wise to use the nuclear option, what’s done is now done. And since such a serious action was taken in the service of speeding up confirmations, that is now what we should expect: a robust, full-on engagement with the confirmation process.
So what would it look like if the Senate put the pedal to the metal, and actually showed up to use this new power which they violently altered the Senate to create?
Debate on most nominees is now limited to two hours each. There are 168 hours in every week, and, under this new precedent, it takes two hours and 30 minutes per nominee to confirm them (2 hours of debate, plus two 15 minute roll call votes). Assuming Democrats burn every hour of debate time (based on past practice, they will not) this means the Senate could confirm 67 nominees per week if they were to work around the clock.
Admittedly, that’s a lot to ask of a body whose average age is 62 (one of the oldest Senates in history), so let’s lower the standard a little bit, and just expect them to work as much as regular Americans.
According to a 2014 Gallup poll, adults employed full time in the U.S. report working an average of 47 hours per week. If the Senate were to work the same number of hours as average Americans, and Democrats were to consume every hour of available floor time (again, they will not) the Senate should still be able to confirm 19 nominees per week—at a minimum.
In other words, if the Senate goes a week without confirming at least 19 nominees, this entire exercise was worth nothing.
Don’t Believe the Hype
Again, recall that Senate Republicans undertook this drastic maneuver for the stated purpose of speeding up confirmations. The obstruction from Democrats was “historic,” the Senate was “at a standstill,” the confirmation process was in “crisis.”
If all that is true, and was worth upending the Senate’s rules, normalizing previously unthinkable tactics, and threatening the future of minority rights, then we should expect rapid, urgent action from the majority.
For example, there are 38 district court nominees on the Senate calendar. All have had hearings, have been reported out of the Judiciary Committee, and are waiting for the Senate to vote.
But your Senate? The one that just told us we are facing a confirmation crisis of world-historical proportions? They busted the rules and then blew out of town on a Thursday. It’s possible that they’ll show up next week and work a full workweek. If they do—if the Senate were to work just five days a week, instead of 2.5—all those judges could be confirmed in just two weeks.
The same is true for President Trump’s executive nominees: undersecretaries, assistant secretaries, general counsels, ambassadors, and so forth. All told, there are 131 people who have been nominated for positions to advance the president’s agenda, ready and waiting for a Senate vote.
At 19 nominees per week (again, that’s just asking the Senate to stay in session for as long as the average American works every week) the Senate should be able to confirm these nominees—all of them!—in just seven weeks.
Those seven weeks, combined with the two weeks it would take to confirm the pending district court judges, means that all the existing lower tier nominees on the Senate’s calendar could be confirmed in nine weeks.
Nine weeks is all it would take, if the Senate just worked as many hours as everyone else in America. And, considering that there are 17 weeks left until the scheduled August recess, they have plenty of time.
Last week, Senate Republicans told us that this confirmation crisis was worth whatever consequences unfurl from the extraordinary step they took last Wednesday.
They’ve have given themselves the ability. What’s less clear is if they possess the will to make the whole exercise worth it.
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