A combination of Democratic obstructionism and Jeff Flake flakiness has conspired to create a backlog of federal judicial nominees awaiting a vote in the Senate. Flake, it will be recalled, decided to bottle up all judicial nominees in committee towards the end of 2018 because Majority Leader McConnell wouldn’t allow a vote on legislation to “protect” Robert Mueller.
Mueller needs no protection. He’s not going to be fired, as the recent hearings on William Barr’s nomination confirmed.
In any event, the Senate lacks the power to protect him from discharge. The legislation Flake insisted upon is unconstitutional. But Flake wanted to go out in a blaze of never-Trumpist glory, and was willing to indulge in his grandstanding at the expense of confirming well-qualified judges.
Faced with the resulting backlog of nominees, and with Democrats insisting on 30 hours of floor debate even for innocuous district court nominees and relatively low level executive branch officials, Senate Republicans, understandably, are frustrated. Reportedly, some were enraged by the fact that when the Senate reconvened earlier this month, more than 270 nominations had been “returned.”
Thus, at a “retreat” earlier this week, Senate Republicans discussed changing Senate rules to expedite the confirmation of Trump’s nominees for federal district court judges and executive branch nominees other than Cabinet picks and selections for bipartisan commissions such as the Federal Communications Commission. The idea is to limit floor debate for these nominees to a few hours, perhaps two or three.
Ordinarily, such a change requires 67 votes but, according to the Washington Post, McConnell discussed deploying the “nuclear option” to change the rules by a simple majority. Harry Reid and the Democrats used this option to end the filibustering of cabinet members and judges below the Supreme Court level. Republicans then used it to apply the same rule to Supreme Court nominees.
The Post notes that the rule change under consideration by Republicans would be permanent, so that a future Democratic president could benefit from it. This prospect should not deter Republicans from pulling the trigger. If a future Republican Senate tries to obstruct a future Democratic president’s nominees, the Dems will change the rules without hesitating.
Using the nuclear option to break the logjam on nominees should be a no-brainer, given Democrat obstruction. There’s certainly no justification for spending 30 hours of Senate floor time to debate over federal district court nominees.
It’s true these judges are becoming increasingly important as (1) many of them join the anti-Trump resistance and (2) the practice of granting nationwide injunctions becomes more common. Even so, there is no need for 30 hours of debate.
Many of these nominees are non-controversial. The Dems insist 30 hours to “debate” them just to slow things down.
Controversial nominees almost invariably are confirmed on a straight party vote. So there’s no need for 30 hours of floor debate on them, either. No one is listening.
The same analysis applies to court of appeals nominees. However, there’s not a major bottleneck at that level right now. Thus, it makes sense to limit the nuclear option to these lower-profile judges and to executive branch positions below the Cabinet level. Sweep away that underbrush, and the Dems can have their 30 hours to debate high level nominees at little cost to filling these positions.
Let’s hope the GOP pulls the trigger.