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The Republican Senate went nuclear again to speed up confirming conservative judges.

Here are four takeaways from the Senate’s shift toward majority rule.

- April 5, 2019

The Senate this week took another step toward majority rule and away from the old model of affording all senators, regardless of party, the right to speak and even block actions they oppose. Exploiting a parliamentary routine dubbed the “nuclear option,” all but two Senate Republicans voted against 46 Democrats to limit floor debate after the vote that brings the initial discussion of a nomination to a close.

The old rule allowed up to 30 hours of such “post-cloture” debate before a final vote on whether to confirm a president’s appointee. The new routine reduces that time to two hours, and it applies to the consideration of most executive branch and all district court nominees.

The Senate move is important. First, by shrinking the time for post-cloture debate, it limits the ability of senators to go on record with their views about controversial nominees and, potentially, to sway colleagues. Second, the way Republicans went about changing the rules will make it easier for future majorities to strengthen the majority party’s power — which is new because the Senate has traditionally required supermajority support to get much done.

Here’s what happened and why.

1. The Senate bent the rules to change the rules

If Republicans had followed the Senate’s formal rules, they would have needed 60 votes to cut off debate. But Republicans failed to get those 60 required votes. So, they opted to “go nuclear” to get the change they sought: Republicans engineered a set of parliamentary steps that circumvented the chamber’s rules.

How did they do that? Instead of rewriting the rule, Republicans voted to set a new chamber precedent that reinterpreted the rule: From then on, “30” hours of debate would be interpreted to mean “two” hours of debate. And here’s the kicker. The Senate adopts precedents by a simple majority vote, not 60.

Reducing post-cloture debate doesn’t make a radical change to the Senate’s practice of advice and consent. But reinterpreting the meaning of the rule — without the necessary supermajority to change the letter of the rule — is why opponents dub the process the “nuclear option.”

Democrats called this breaking the rules to change the rules. Sure, this isn’t as momentous as nuclear moves by Democrats in 2013 to ban filibusters of judicial and executive nominations or by Republicans in 2017 to ban filibusters of Supreme Court nominations. But it’s still a big deal. The majority party is willing to circumvent the chamber’s formal rules to gain even the smallest advantage.

2. Republicans paved the way to stack the federal bench

Majority Leader Mitch McConnell (R-Ky.) blamed Democrats, arguing that they unduly stretched out post-cloture debate even on occasions when they had every intention of voting to confirm nominees. But take a closer look. Using the Senate’s official record of the timing of recorded votes, I tallied up how many hours elapsed between the moment the Senate invokes cloture to cut off initial debate and when the Senate votes on whether to confirm the nominee.

As you can see in the figure below, the Senate rarely took the full 30 hours of debate.

Hours of Senate post-cloture debate on judicial nominations in 2017 and 2018
Hours of Senate post-cloture debate on judicial nominations in 2017 and 2018

Half of the time, senators debated lower court nominees for less than 22 hours after cloture. For nearly every nominee, the two party leaders negotiated the timing of the confirmation vote. That’s why post-cloture debate for some nominations stretched over 200 hours. To accommodate senators’ schedules — including going home for a break — leaders put off confirmation votes long past the 30-hour mark. In other words, most nominations take far less than 30 hours. Even when they take more time, it’s typically because both parties want it that way.

What’s more, Republicans similarly deployed post-cloture debate when they last served in the minority — even when they supported confirmation.

Did one party slow down consideration of judicial nominations more than the other?
Did one party slow down consideration of judicial nominations more than the other?

So why did Republicans limit post-cloture debate to two hours? That guarantees that Senate Republicans will be able confirm more conservative nominees to vacant federal judgeships. One hundred thirty of 677 district court judgeships are vacant, with 56 nominees pending in the Senate — in part because the majority leader radically slowed the confirmation of judges during President Barack Obama’s last two years in office. Thirty-eight of those nominees are ready to be considered on the Senate floor, so expect Republicans to confirm more judges and other Trump nominees in the weeks and months ahead.

But bear in mind, the change won’t resolve other bottlenecks in the White House and Senate that slow the process of selecting, vetting and confirming nominees — delays that today leave hundreds of executive positions vacant.

3. Democrats lose a toehold for blocking nominees

In the previous Congress, when a majority cut off debate on a nominee, the Senate confirmed nearly every one of them after post-cloture debate expired. But not all.

Two particularly controversial nominees were close to confirmation until Sen. Tim Scott (R-S.C.) came out against both during post-cloture debate.

With just two hours of post-cloture debate, opponents will be unlikely to change any minds. True, those might be the rare exceptions that prove the rule: Post-cloture debate generally is a weak tool for blocking nominees deemed unsuitable for lifetime appointments on the bench. If Democrats or a future minority want to slow or block presidential nominations to the district courts, they can still take a stab at it in committee. But opponents’ arsenals are smaller under the new post-cloture regime.

4. Another step toward majority rule

This is the fourth time in eight years that a Senate majority has nuked a portion of the Senate’s cloture rule. Each time, the Senate has chipped away at the parliamentary rights of senators and made it harder for a Senate minority to block an ambitious majority party. In the past, senators typically viewed the political costs of bending Senate rules as too high and instead deployed nuclear moves only on more minor procedural tweaks.

But the more often the nuclear option is used, the less costly it seems. First, each party’s base cheers the move, as it lets a majority party reach goals like confirming favored Supreme Court nominees. Second, each time it happens, Senate majorities seem to face less and less pushback from the minority party, making it less costly to do it again. In short, the nuclear option has become routine: Both parties do it, so neither party pays much for breaking the rules.