January 29, 2019

A Senate Return to the Nuclear Option?

Marty Paone

Now that the government is fully funded and the border security issue, in one way or another, is going to be addressed, Congress can go back to work on such items as: the next year’s appropriations bills for which a budget agreement will be needed in order to avoid a sequester; a new trade agreement with Mexico and Canada to replace NAFTA; perhaps an infrastructure package; and a debt limit increase, to name just a few items. In the Senate, Majority Leader McConnell will also want to process the President’s nominations.  Attorney General Barr’s nomination and Andrew Wheeler’s EPA nomination have been submitted, while the Senate awaits nominations for Secretary of Defense and Secretary of Interior.  In addition to those and other agency nominations, Majority Leader McConnell will make sure Judiciary Committee Chairman Graham focuses on reporting to the floor lifetime appointment judicial nominees.

On the nominations front, many Republican Senators have been frustrated with the pace of confirmations. Even with the ability to invoke cloture by majority vote, the 30 hours post-cloture debate time has been used by the Democrats to delay their progress.

At the Senate Republicans’ recent retreat on January 17, there were reports that some of their senators were clamoring for a reduction in the 30 hour post cloture time for nominees. Some want to return to the “bipartisan agreement in 2013 that temporarily cut short the post-cloture debate time.”  The Washington Post article about the retreat noted that McConnell raised the prospect of using the ‘nuclear option’ to unilaterally lower these debate times. Republicans also voiced frustration with the number of nominations – over 270 – that were not acted on and had to be sent back to the White House at the end of the Congress because of what they perceived as Democratic obstruction. Though some 434 nominations were confirmed during those two years including 85 judicial appointments – 2 Supreme Court; 30 Circuit Court; and 53 District Court judges. Trump appointed more circuit court judges in his first year than any president in history.

The bipartisan agreement in 2013 the frustrated Republican senators want to restore was adopted by the Senate in January 2013 by a vote of 78-16. (Senator Sanders (I-VT) and 15 Republicans voted no) The resolution enacted that day reduced the post cloture debate time for nominees and lasted until the end of that Congress.

The debate time post-cloture for nominees was reduced considerably. For nominations, except those of cabinet level positions and Supreme Court and Circuit Court nominees, the post-cloture time was reduced to 8 hours of debate, equally divided between the two sides and for District Court judicial nominees the time was reduced to 2 hours equally divided.  The maximum cap of 30 hours for debate post cloture would still apply to the Cabinet level and higher court nominees. The equal division of time allowed one side to yield back time so the nomination could be processed even more quickly, i.e. 4 hours for most nominations and 1 hour for District Court nominees. This yielding back of time is not possible under the normal post-cloture 30-hour cap.

Before the vote on S. Res. 15 in January 2013, Senator McConnell posed the following question to Senator Reid and he received the following answer:

Mr. MCCONNELL.
“On the subject of nominations, Senate Republicans will continue to work with the majority to process nominations, consistent with the norms and traditions of the Senate. One of those customs is for home state senators to be consulted on, and approve of, nominations from their states before the committee on the Judiciary moves forward with considering those nominations, be it a nomination to serve as a U.S. Attorney, U.S. Marshall, or judicial officer. It is my understanding that the order does not change, in any way, the Senate’s ‘‘blue slip’’ process.”

Mr. REID.
“I agree. Furthermore, it is our expectation that this new process for considering nominations as set out in this order will not be the norm, but that the two leaders will continue to work together to schedule votes on nominees in a timely manner by unanimous consent, except in extraordinary circumstances.”
Congressional Record January 24, page S 272

The “blue slip” policy Senator McConnell was asking Reid about originated early in the last century. It has allowed home state senators to effectively veto a district or circuit court nomination. It has been adhered to in different ways by different chairmen over the years some requiring both home state senators to refuse to return their “blue slip” in favor of the nominee or to return negative recommendations. It was a tool of the Senate to encourage presidential consultation with the home state senators before nominations were submitted.

During the 8 years of President Obama’s tenure, Republican Senators used the “blue slip” to keep judicial vacancies open and deny the Judiciary Committee and the full Senate the ability to vote on these nominations. Both Chairmen Leahy (D-VT) and Grassley (R-IA) enforced the prohibitions of the “blue slip”.

The election of 2014 put McConnell in the Majority Leader’s chair. During President Obama’s last two years McConnell allowed only 2 Circuit Court and 18 District Court nominations to be confirmed.  During those final two years, Chairman Grassley strictly honored his colleagues negative use of the blue slip.  But during President Trump’s first two years he and Senator McConnell reversed their views of the blue slips importance and processed circuit court nominations despite home state senators’ objections. Time.com ran an article on this reversal: How One Republican Broke With Tradition to Help Trump Confirm More Judges. Below is also from said Time article on Grassley:

“In a separate interview with TIME in January, McConnell said his view is that “the blue slip tradition ought not to apply to circuit judges.” (As opposed to district judges, on which home state senators usually get more say.) Blue slips “ought to be treated as a notification of how you’re going to vote,” McConnell said, “rather than a blackball.””

The tit for tat policy of retribution probably goes back further but many Republicans point to 1987 and what they perceived as the harsh treatment the Democrats gave to President Reagan’s Supreme Court nominee, Robert Bork. His nomination was defeated by a vote of 42-58 (6 Republicans voted no). The Republicans’ poor treatment of President Clinton’s judicial nominees was followed by the Democrats opposition to many of President George W. Bush’s judicial nominees.

The Republicans upped the ante during President Obama’s administration when they held up nominations for boards and commissions in order to deny them quorums, like the NLRB, FEC, EXIM Bank and the Director of the CFPB . The straw that broke the camel’s back was the Republicans refusal to confirm Obama’s selections for the DC Circuit Court claiming there wasn’t enough of a work load for a full complement of judges. The real reason was to keep a working Republican majority on the Court since the retired Republican judges who had taken ‘senior status’ were still working on cases until their replacement was confirmed.  This obstruction is what forced Majority Leader Reid’s hand in the fall of 2013 and he reduced the cloture threshold for nominations to a majority vote, except for Supreme Court nominees. Minority Leader McConnell complained mightily about the damage Reid had done to the Senate but he did not hesitate to employ the same nuclear tactic to confirm President Trump’s Supreme Court nominee Neil Gorsuch.

Senator McConnell’s jettisoning of the ‘blue slip’ policy for Circuit Court nominees may be a good indication that he might use the nuclear option again if he thinks it’s in his party’s long term interest.   The only thing that may give him pause is the prospect of a Democratic President in January 2021 along with a Democratic Senate.  Time will tell if he decides the risk is worth it.  But whether it’s a Republican or a Democratic Leader it’s only a matter of time when we’ll see cloture further scaled back and eventually also see a majority cloture threshold imposed for legislation.  Then even members of the majority will find that their ability to modify or delay legislation has been severely curtailed as majority vote coalitions are formed.