In another step of a more than twenty year parliamentary spat over which party has wrongly exploited the Senate rules to slow down nominations of the President of the other party, Republicans in the U.S. Senate on Wednesday used the 'nuclear option' to reduce the amount of debate time on federal district court judges and nominees to posts below Cabinet positions, making it easier for President Donald Trump's choices to get through the Senate.
"Republicans believe, regardless of who the President is, they should be able to hire their staff," said Sen. James Lankford (R-OK), who has pressed for a change in debate rules for months.
It was the third time the 'nuclear option' had been used in the Senate to alter the rules governing the filibuster and nominations:
+ In November 2013, Democrats eliminated the 60 vote requirement on all nominations by a President - except for the U.S. Supreme Court.
+ In April 2017, Republicans stripped the 60 vote requirement for U.S. Supreme Court nominations.
This change does not alter the filibuster at all, but would instead reduce the amount of time required for debate after Senators had voted to force final action, cutting that from 30 hours down to just two hours, allowing faster action on Presidential picks.
The change would not apply to Supreme Court nominees, or Cabinet-level nominations.
The vote to change the precedents of the Senate was 51-48, as two Republicans broke with GOP leaders, Sen. Mike Lee of Utah, and Sen. Susan Collins of Maine.
To those not working in the halls of Congress, the change might sound arcane and insignificant; but on the Senate floor, there was finger pointing and raised voices as the nuclear option was exercised.
McConnell literally just pointed at Schumer and said "HE STARTED IT" as an explanation for why the GOP is going nuclear today. So. That's where we are.— Rachel Bovard (@rachelbovard) April 3, 2019
The two procedural leaders of the Senate did not make coherent procedural arguments. Just juvenile sniping about who started it.— Josh Huder (@joshHuder) April 3, 2019
Perfect representation of where the Senate is and where it's headed.
Era of good feeling: #Schumer calls #McConnell move to block #MerrickGarland nom ``a new Machiavellian low" and ``naked power grab" & #McConnell said Schumer invented filibusters of executive calendar nominees. `He started this whole thing!" McConnell says, pointing at Schumer— Nancy Ognanovich (@NOgnanovich) April 3, 2019
Bubbling below the surface of today's change in rules precedents was a he-said-she-said fight that has been going on for over twenty years in the Senate, as each party blames the other for starting a parliamentary assault which has resulted in the filibuster being used on a regular basis to block and slow nominations, especially to the federal judiciary.
Republicans said the use of the filibuster against a group of federal appeals court nominees during the Bush Administration had set in motion a tit-for-tat.
"He started this whole thing," Senate Majority Leader Mitch McConnell said in a raised voice, while pointing his finger at Senate Democratic Leader Charles Schumer, recounting how Schumer and Democrats had used the filibuster against President Bush.
"I will call it Miguel Estrada's revenge," said Sen. Tom Cotton (R-AR) said of the debate time change, invoking the name of one conservative judge nominated by President George W. Bush in 2001, but blocked in the Senate by Democrats - the first time a party had used a filibuster to block an appeals court nominee.
Today, Senator Schumer reaps what he sowed 16 years ago. I will call it, Miguel Estrada's revenge. pic.twitter.com/ol6pyRqn4V— Tom Cotton (@SenTomCotton) April 3, 2019
A lot of crossover between Harry Reid's complaints about Mitch McConnell before he detonated the nuclear option and McConnell's complaints about Democrats now.— Steven Dennis (@StevenTDennis) April 3, 2019
Meanwhile, Democrats took their grievances back to the Bill Clinton Administration, when Republicans refused to act on numerous nominations - even arguing at times that certain appeals courts did not need to have judicial vacancies filled - as both parties voiced their own set of grievances from the past when it came to filibusters and nomination hijinx.
"This is a very sad day for the Senate," said Senate Democratic Leader Charles Schumer, as Democrats noted that Republicans have repeatedly bragged about how many Trump judicial nominees have been approved by the Senate, and that the Senate will now be able to speed up those proceedings.
Schumer and other Democrats also brought up the name of President Obama's Supreme Court nominee Merrick Garland, who was never given a hearing or a vote by the GOP-controlled Senate after the death of Supreme Court Justice Antonin Scalia.
"They filibustered the first Secretary of Defense nominee in the history of America," said Sen. Michael Bennet (D-CO), noting President Obama's choice of ex-Sen. Chuck Hagel (R-NE) to lead the Pentagon was slowed by opposition from Republicans in early 2013.
Bennet though was one of the Democrats who voted back in 2013 to end the 60 vote requirement on most nominees, as he now acknowledged that he thought the move was a mistake, as it opened the gates to further changes.
"I apologize for that vote. I share some responsibility for where we find ourselves today," Bennet says of supporting killing the 60-vote requirement in 2013 on most nominees— Burgess Everett (@burgessev) April 3, 2019
Other Democrats joined in accusing Republicans of crying wolf, and conveniently forgetting about their own efforts to slow the nominations of the last Administration.
"Only 22 judicial nominees were confirmed in the final two years of the Obama presidency," said Sen. Ron Wyden (D-OR), noting that was "the fewest in a Congress since Harry Truman was President," as Democrats say GOP filibusters kept judicial vacancies from being filled, giving President Trump more possible nominations to the federal bench.
The nuclear option battle came over the nomination of Jeffrey Kessler for an Assistant Secretary of Commerce post, as Republicans said there was no reason a job like that should be subjected to 30 hours of debate after Senators voted to force final action.
LEGISLATIVE FILIBUSTER NEXT?
The latest change again raised the specter of the 60 vote filibuster threshold being scrapped entirely by the Senate on legislation, just over 100 years after the cloture rule was instituted by the Senate, at the behest of President Woodrow Wilson.
"I’m a Senate defender and a longstanding believer that most Senators want to keep the legislative filibuster, but even I’m having a very hard time seeing how it survives the next unified government," said Matt Glassman, a senior fellow at the Government Affairs Institute of Georgetown University.
But Senate Majority Leader McConnell made very clear that he had no intention of ending the legislative filibuster.
"I know many of our colleagues on both sides share my view that this part of the Senate's DNA must never be put in jeopardy," McConnell said on the Senate floor.
But ending the filibuster - which has long been a goal of liberal groups since the 1960's and the Civil Rights Era - has also now become a big goal of many Democratic candidates running for President in 2020.
“I would be shocked if the filibuster sticks around for the entirety of my second term in the Senate,” said Sen. Chris Murphy (D-Conn.), who was re-elected last year. “It is very hard to figure out how you do a major health care reform without changing the rules.”— Burgess Everett (@burgessev) February 1, 2019
Since the cloture rule was instituted in 1917 - requiring a two-thirds vote to force an end to debate - the number of votes was reduced in 1975, bringing it down from 67 to 60 votes on legislation.
Originally, nominations were never subjected to filibusters in the Senate - but that changed in the 1990's, leading to dozens of cloture votes on nominations - and charges of bad faith - where each party has echoed the arguments of the other, simply depending on whether they were in the minority or majority.
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Credit: Stephen B. Morton for The Atlanta Journal Constitution