On an afternoon in early April last year, Majority Leader Mitch McConnell (R-Ky.) went to the floor of the Senate. In uncharacteristically emotive tones, McConnell, flushed with rage, jabbed his finger in the direction of the Democratic side of the chamber. “He started this whole thing,” he said, referencing Minority Leader Chuck Schumer (D-N.Y.). “We’re trying to end the dysfunction on the executive calendar,” he snapped.
Ending the dysfunction around executive branch nominees meant deploying the Senate’s third nuclear option in seven years. The nuclear option—so named because instead of changing its rules, the Senate simply breaks its rules over and over again, setting a new precedent—was deployed to reduce the hours of post-cloture debate time for most executive branch nominations from 30 hours to two.
The details of the change are less important (but for those interested, you can read about why I thought this was a bad idea here and here) than the reason given for such drastic action. The Democratic obstruction was “systemic.” The filibuster efforts were nakedly partisan and destroying the Senate’s “norms and reasonable process” for confirming nominations.
Using the nuclear option to further restrict filibusters and debate on nominations would save us all, we were told. It would restore order to the Senate and allow confirmations to proceed apace.
Yet, just over a year later, Politico published an article lamenting “record-breaking gridlock” on Trump’s nominees, with Democrat obstruction still the source of the problem.
It’s unquestionably true that Democrats have filibustered Trump’s nominees disproportionately, compared to how previous presidents have been treated. Republicans have had to overcome 312 filibusters during Trump’s first term, compared to only 17 launched by Republicans during President Obama’s first term.
But the power of that filibuster has diminished significantly. The 60-vote requirement is gone for every nomination, even the Supreme Court. And the time required to confirm most nominations has been reduced from 30 hours per nomination to 2 hours. Moreover, though they demand cloture votes, most Democrats end up supporting Trump’s nominees.
So what gives? The nuclear option was supposed to be the means that got us around the “historic Democratic obstruction.” Why hasn’t it?
The answer lies, as it usually does, in the Senate’s unwillingness to show up and do the job. As I wrote shortly after the nuclear option was deployed last year, under the Senate’s new precedent, they could have cleared the existing nominations backlog in two weeks if they had just worked around the clock—even if Democrats filibustered every nominee.
That’s a heavy lift for the geriatric Senate whose members, normally, work 2.5 days a week. So let’s make it more reasonable. Even working five days a week on a regular eight-hour work day, at two hours per nominee, the Senate could still do 19 nominations a week in the face of repeated Democratic filibusters.
But doesn’t the Senate have other things to do? Yes. And no. The modern Senate does very little legislating compared to its predecessors. In the six months of 2020, there have been only 15 amendment votes. And Sen. Mike Lee (R-Utah) bears the distinction of having the only amendment passed to a substantive piece of legislation (the other four successful amendments were to amend the “findings” of non-binding resolutions).
But in nuking its rules, the Senate prioritized confirmations even above legislation. They made confirming nominations the easiest thing to do in the Senate—thereby giving themselves the procedural imperative to act on nominations. It’s virtually the only thing the Senate does anymore.
The Senate has confirmed over 200 federal judges, almost 30 more than President Bill Clinton had confirmed at the same time in his first term, though the judicial vacancy rate is still higher than it was under both President George W. Bush and Clinton.
Two hundred federal judges isn’t nothing, but it also isn’t a great something considering how little else the Senate does. Without a true filibuster to overcome, (nominees are confirmed at 51 votes, not the 60 votes required to overcome a filibuster on legislation) confirming nominations is less parliamentary wizardry than it is mindless scheduling.
There is also the fact that the Senate, as a meaningful deliberative or legislative body, is largely irrelevant. McConnell has hitched his legacy to the 51 Republican-appointed Appeals Court nominees installed by his Senate—an overt acknowledgement of the fact that the Senate relies on the courts to enact the policies they deem too politically perilous to debate and legislate about themselves.
But the fact remains. It’s not Democratic filibusters stalling confirmations. Democrats can only block nominees brought to the floor for two hours. It’s the GOP Senate’s unwillingness to force them to the floor.
Former Senate majority leader Trent Lott (R-Miss.) used to say “there are only two rules in the Senate: exhaustion and unanimous consent. And the second only applies when the first has been reached.”
There is nothing stopping McConnell from doing what former Democratic Majority Leader Harry Reid (D-Nev.) used to do: threaten to keep the Senate in over the weekend unless Democrats agree to clear by consent (which doesn’t require voting) a package of nominations. This is a reasonable option, considering that most Democrats end up voting for Trump’s nominees anyway.
There is also nothing stopping McConnell from filing cloture on the 79 (as of June 10) nominations on the Senate’s calendar, and exacting a sort of death march through their confirmations—daring Democrats actually to use two hours of post-cloture debate time on each nominee (the Senate’s rules allow for the Senate to “call the question”—that is, move to the vote then and there—when debate time goes unused).
Instead, McConnell would rather blame Democrats. Because it’s easier, andit doesn’t upset the members of his GOP caucus who prefer not to work. It’s an easy argument to placate the president, who naturally wants the members of his administration confirmed—particularly when the nominations to boards and commissions will outlast his administration, if he only serves one term.
The Senate has spent the last several years drifting into irrelevance, preferring to avoid the fierce legislative battles for which the Senate is designed. It’s safer that way. The leadership has more control. The senators can sit and age in silence, never being forced to create a record of what they stand for, or exercise any of the legislative autonomy granted to them by the body itself.
So the McConnell Senate can blame the Democrats all they want for obstruction. It was the same excuse back in 2019 to break the Senate’s rules. And it’s the same excuse now, even though changing the very character of the Senate was allegedly supposed to save us all from those meddling Democrats.
President Trump and his advisors should see through the specious arguments of the lazy McConnell Senate and take their fight where it truly belongs. When it comes to a lagging confirmation process, the Republican Senate blames everyone but the people who are truly at fault. They have only themselves to blame.