Notice & Comment

Returning Civility to the Senate Confirmation Process Without Destroying the Senate

Recent Senate confirmation battles have featured unprecedented conflict. Without the need to consult with Democrats to overcome a filibuster on nominees, Republicans have eliminated some of the bipartisan confirmation norms such as the “blue slip” for U.S. circuit court nominees, which required each home state senator to approve of a circuit court nominee. In response, the Senate has confirmed nominees who arguably have less bipartisan support, less experienced, and less ties to states where they will serve.

Senate Democrats are not completely powerless to stop these nominations. When the Senate lowered the threshold for overcoming a filibuster on a nominee to a simple majority, it kept the 30-hour requirement to overcome a filibuster. If even one senator filibusters, the Senate must devote 30 hours of floor time to the nominee. As such, Senate Democrats have routinely required Senate Republicans to devote the full 30 hours to confirming nominees.

While the Republican Senate has been willing to devote 30 hours to overcome filibusters on nominees to more important positions, the floor time has added up quickly. As a result, the Republican Senate has not had enough floor time to confirm “lower-level” nominees and many positions requiring confirmation remain vacant.

In response to this backlog, Senator Lankford has advocated returning to a 2013 bipartisan agreement on the time required to confirm a nominee. When facing a similar backlog of nominees in 2013, the Senate passed a bipartisan resolution that for the next two years the floor time to overcome a filibuster on a nominee would be a maximum of eight hours for non-cabinet Executive Branch nominees and a maximum of two hours for U.S. district court nominees. Senator Lankford has argued that presidential candidates should support the proposal as removing impediments to confirmations would benefit a future Democratic president. Recently, the Senate Committee on rules and Administration passed out of committee the proposal on a straight party-line vote.

To change the Senate Rules, Senate Republicans must either (1) amend the rules and overcome a filibuster, which Senate Rule XXII sets at a larger than usual two-thirds vote,  (2) create a new standing order and overcome a 60-vote filibuster, or (3) reinterpret the existing filibuster rules through a 50-vote point of order to eliminate the 30-hours of debate requirement (i.e., the nuclear option). Senate Republicans have indicated that they may soon use the nuclear option to implement the proposal.

As to eliminate any false dichotomy between Senator Lankford’s proposal and the status quo being the only options, I suggest three alternative proposals that the Senate should consider: (1) include the 2013 vote thresholds for nominees when returning to the 2013 time requirements (2) ensure that the proposal would only benefit future presidents by delaying implantation of the proposal until 2021 and/or (3) use recess appointments instead.

The Senate could instead adopt the 2013 time requirements together with the 2013 60-vote requirements. Adopting the time requirements today, however, would merely benefit Senate Republicans confirming contentious nominees on a party-line vote. Instead, only if a nominee receives over 60 votes should the Senate be able to devote fewer hours to debate. Additionally, to discourage completely eliminating the traditional blue slip consultation of home state senators for U.S. district court nominees, the Senate should require both home state senators to vote for a judicial nominee before the Senate may use the reduced two hours of floor time.

Likewise, if Senator Lankford wants his proposal to benefit future presidents, he should postpone the proposal’s effective date until 2021. Delaying the effective date until 2021 would create a situation where both parties could negotiate when they do not know which party would control the Senate or the presidency. Any resulting agreement would almost by definition be beneficial to the future operations of the Senate as both parties would have to consider what powers they have in the minority and majority.

Alternatively, the Senate could go on recess to allow President Trump to temporarily appoint nominees through recess appointments. This strategy would ensure that President Trump could get his executive nominees in place, but not appoint judicial nominees to life-time positions. Although the House of Representatives could oppose this proposal by withholding its constitutional required consent for the Senate to go on recess, as I have previously explained, the Constitution allows the president to resolve any disputes between the houses of Congress regarding whether to go on recess.

The increased conflict in the confirmation process is a bipartisan creation. I commend Senator Lankford for proposing a solution to the problem, but encourage the Senate to consider my three alternatives, which would better help to preserve the deliberative process of the Senate.

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