February 8, 2019

Go Nuclear to Expedite Nominations? or: Oops – There Goes Another Rubber Tree Plant!

Marty Paone

On February 6, 2019, Senator Lankford introduced S. Res. 50, which was referred to the Rules Committee. Senator Blunt, the chairman of the Rules Committee, is a cosponsor and he has indicated that he wants the committee to consider the resolution before the end of March.

The resolution goes further than S. Res. 15, the earlier-discussed Standing Order which the Senate adopted in January 2013. That lowered to 8 hours, equally divided, the post-cloture time on all nominations except for those of Cabinet Secretary level and Supreme Court and Circuit Court nominees-those remained at 30 hours under the cloture Rule 22. For District Court nominees, post-cloture time was reduced to 2 hours, equally divided.

Senator Lankford’s S. Res. 50 reduces the post cloture time for District Judges and all nominations of the Executive branch, except Cabinet level and those boards and commissions listed in the resolution, to 2 hours equally divided.

For all others (the Cabinet level, the listed boards and commissions, Circuit Court and Supreme Court nominees), it remains at 30 hours, but it will be equally divided between the two leaders so half can immediately be yielded back.

This would expedite the consideration of nominations considerably but it’s highly unlikely it would attract enough support from the Democratic side of the aisle to invoke cloture on it so the million dollar question will be- does Majority Leader McConnell use the ‘nuclear option’ and overturn the Chair when it rules against his point of order stating that cloture on the Resolution deserves to be adopted by a majority vote?

In a recent Washington Post article, Senator McConnell indicated he’d consider using the ‘nuclear option’ for this purpose. Using the ‘nuclear option’ to impose a majority vote cloture to adopt a piece of legislation, this Resolution, will be one more step closer to imposing majority cloture on other forms of legislation.

What will be next?

The motion to proceed?  Supporters will say: “You’ll still be able to filibuster the bill.”

Passage of a Debt Limit extension?  Supporters will say: “We can’t allow a default! It will be ruinous to our full faith and credit!”

Passage of an Omnibus Spending bill?  Supporters will say: “We can’t have another shutdown, it’s too costly to our nation’s economy, to the government workers and to the government contractors.”

This arc of retribution for perceived obstructionism is bending towards majority cloture for all measures.