Republicans are changing the rules

Senate Republicans are changing the rules to confirm Trump’s judges even faster

It’s a win for Republicans in the near term, but Democrats could also capitalize on the update in the future.

By Li Zhou

Senate Republicans are on the verge of going nuclear again this week.

Once more, they’re trying to change Senate rules so they can confirm President Donald Trump’s nominees more expeditiously. It could mark the third time in less than a decade that the Senate has used the so-called “nuclear option” — a term used for parliamentary procedure that sets a new precedent with only a simple majority of lawmaker votes.

This time, Republicans are interested in amending Senate rules in order to further limit the amount of time lower-level nominees could be debated on the floor. Currently, if lawmakers vote to limit debate on a nominee, that back-and-forth is still able to continue for 30 hours. Practically speaking, because there is only so much time the Senate is in session, this means there’s a finite number of nominees that Republicans can get through — and that’s something they want to change.

A resolution from Sens. Roy Blunt (R-MO) and James Lankford (R-OK) aims to curb debate time to two hours per nominee, thereby cutting down the process significantly — and further accelerating the breakneck pace at which they’re pushing judicial appointees. (In 2018, lawmakers confirmed a record number of appeals court judges.)

This resolution would only apply to district court judicial appointees and lower-level positions in the administration. It does not cover nominees for the Supreme Court, circuit courts, or Cabinet positions.

Republicans argue that this rules change is necessary because Democrats have gone out of their way to slow-walk consideration of Trump’s nominees. Democrats, meanwhile, say that Republicans have gutted other processes, like “blue slips,” that would enable them to otherwise vocalize their concern with different nominees.

“Senate Democrats spent the first two years of the Trump administration dragging out the confirmation process to not only deny the president his team, but also to waste hours of floor time that should have been spent focusing on the American people’s priorities,” Blunt said in a statement. “This has been nothing more than obstruction for the sake of obstruction and it is outrageous.”

That assertion, however, is laughable to some Democrats, who have noted that Senate majority leader Mitch McConnell’s supposed outrage over the way Democrats have blocked Republican nominees is hypocritical, given the lengths he went to in order to prevent President Barack Obama’s nominee Merrick Garland from even getting considered for a Supreme Court seat.

Since Republicans would need Democratic support to make this rule change, there had been some talk of a compromise that could include the reinstatement of “blue slips.” Such talks have faltered, however, according to The Hill. That leaves Republicans, who have a 53-person majority in the Senate, several votes short of the 60-vote threshold they need to hit in order to end debate about the rules.

Given how eager Republicans are to jam through more Trump nominees, it’s looking increasingly likely they will use the “nuclear option” — a last-ditch parliamentary loophole that allows them to reconsider the vote — to push through their plans anyway. By going this procedural route, Republicans could establish a new precedent with just 51 votes. Because this new precedent is not quite as dramatic as the elimination of the filibuster for judicial nominees, Fox News’s Chad Pergram has referred to it as a “suitcase nuke.”

Democrats have expressed outrage at this move, not just for its departure from procedure: They argue that it could give Republicans even more leeway to rush through hundreds of nominees in the near term.

One potential upside for Democrats down the line, however? They would also be able to use these rules changes in order to shepherd through their nominees if the party were to retake the Senate majority in 2020 or later.

How the rules change would work

As the rules currently stand, Trump nominees undergoing Senate confirmation typically receive two votes if they are contentious. The first vote is a procedural vote to limit debate on their nomination, and the second vote is to officially confirm them.

In cases when a nominee is not controversial, large groups of them can also be confirmed en masse if Senators unanimously agree to it.

Any member of the Senate can oppose the consideration of a nominee and argue for debate to continue in perpetuity, however. That tees up the first procedural vote, known as a “cloture” vote, which is aimed at limiting this debate so that the upper chamber can actually vote on a nomination. If the Senate votes in favor of the first procedural vote, further debate on the nominee is curbed at 30 hours.

As former Harry Reid staffer Adam Jentleson noted in a piece for the Washington Post, forcing the use of this procedural vote is one of the few tactics Democrats still have to delay the confirmations on Trump nominees. If they employ it, nominees could take up to four days to get approved.

Democrats have used this tactic more frequently in the Trump administration than many previous ones, simply because other means to oppose different nominees have been eroded. Previously, lawmakers could use “blue slips” to indicate that they weren’t pleased with a particular judicial nominee from their home state, but Republican Judiciary Committee chairs have not enforced the use of this option. Under prior procedure, if a blue slip was withheld by a home state Senator, that judicial nominee would typically be removed from consideration.

Republicans aren’t pleased with the confirmation delays these procedural votes and subsequent debate have caused, and that’s exactly what this rules change seeks to address.

“President Bush, Clinton, and Obama had a total of 24 cloture votes filed in all three administrations in those first two years; 128 cloture votes have been required by Democrats in this Congress,” Blunt said during a press briefing earlier this year. “It is clearly an attempt just to use up time.”

If it goes through, the debate on nominees would be limited to two hours rather than 30. It’s a change that had also previously been made to Senate procedure in 2013 as a temporary standing order, but Blunt and Lankford’s resolution would make the change permanent.

The rules update would cut the time needed to confirm nominees by about a day, meaning the Republican majority could potentially push through more nominees.

The rules change could end up coming back to haunt the GOP

While Republicans are seeking to capitalize on this rules change for the duration of Trump’s first term, Democrats could well take advantage of it if they regain the majority in 2020 or another cycle in the future. Like any rules change the majority has made in the Senate before, it’s something the minority could also utilize if they flip the chamber.

Republicans were able to build upon the changes then-Senate majority leader Harry Reid initiated for cabinet nominees and filibuster rules during the Obama administration, for example, and Democrats could certainly do the same with this update. Additionally, they could even go further and abolish the 60-vote filibuster threshold entirely, says former Reid staffer Jim Manley.

“The real question is whether this process of turning the Senate into the House ends with this latest change by McConnell or whether it makes it easier for him or the next leader — Democrat or Republican — to make the next move and do away with the filibuster once and for all,” he told Vox.

That’s something Senate Democrats — including a number of those running for president in 2020 — have expressed openness toward. (Not everyone is on the same page: While Elizabeth Warren has said she’s been down to keep all options on the table, Cory Booker has staunchly opposed this route.)

As Republicans have said, Democrats have actually been supportive of this specific rules change in the past. In 2013, Reid led a similar rules change which garnered 78 votes in the Senate, in order to move nominations along. At the time, the tweak was simply temporary.

As Manley notes, the change could be yet the latest one on a slippery slope that gives Democrats and Republicans more justification to mess with Senate rules in the future. Although Senate minority leader Chuck Schumer has thus far shut down talk of changing the filibuster, it’s a position that’s gaining increasing popularity as part of the 2020 presidential race.

Tuesday’s rules change seemingly leaves the door a bit more open to a move like that.