Donald Trump’s pick of retired four-star Marine Corps Gen. John Kelly as White House chief of staff is widely applauded. Now comes the hard task of appointing a new Homeland Security secretary. One intriguingly disruptive scenario involves a possible transfer of Attorney General Jeff Sessions to head the Department of Homeland Security.
Meanwhile, President Trump must also secure Senate confirmation for the hundreds of top executive and agency posts that remain empty. Thus far, the Senate has confirmed less than 50 top executive and agency officials.
{mosads}President Trump faces an appointment blockage worse than any seen before in the past four presidencies. We are witnessing confirmation obstruction on steroids.
Obama-era holdovers and long-burrowed career bureaucrats continue to exert day-to-day governing authority.
The unprecedented obstruction is, obviously, part of a wider attempt by partisan opponents to discredit Donald Trump’s election; to “resist” Trump’s governance.
Swamp Confirmation Hardball: 30-Hours of Debate for Each Top Nominee
Signaling a long season of swamp hardball, Senate Democrats began their obstruction by long procedural delays of Cabinet confirmations. Trump’s wait for a full Cabinet was the longest in 30 years.
Once the Cabinet was in place, the nascent administration was able to substantially ramp-up its selection and nomination processes. Trump has now made hundreds of nominations with a score more coming each week.
Abusing Senate procedures, Democrats have allowed Trump only a fraction of the confirmations of his immediate presidential predecessors. By routinely objecting to the majority’s unanimous consent request, Democrats are triggering the Senate’s default 30-hour post-cloture debate rule for each top Trump nominee. This absurd procedure requires the majority to expend 30-hours of Senate floor time for each nominee.
11 Years for a Full Trump Administration?
Senate Majority Leader Mitch McConnell (R-Ky.) conservatively calculates that it will take 11 years to confirm the remainder of President Trump’s nominees:
“If this trend continues, it will take us more than 11 years to confirm the remaining presidential appointments. Let me repeat that. More than 11 years. A presidential term lasts four.”
Even McConnell, who knows well how to slow-walk, is shocked by the “breathtaking” level of recent confirmation delay:
“The level of obstruction exhibited by Senate Democrats on these nominees is simply breathtaking. It’s often leaving key departments without the senior leadership needed to guide our country through the various challenges we face. And it needs to stop.”
Seldom in Senate history has the upper chamber’s institutional functioning been so degraded by the minority’s daily abuse of its rules.
Court Battles Without a Solicitor General But Progress on Benching Judges
Even while fighting court battles to implement initial administration policies, President Trump does not even have his own Solicitor General confirmed. Donald Trump does not have the zealous advocacy — nor the wise counsel — of a Ted Olson, a Rex Lee, a Thurgood Marshall, a Robert Jackson.
Known as the “tenth Justice” with chambers in the SCOTUS building, the Solicitor General represents the government before the high court in addition to controlling intermediate appellate appeals from federal agencies. The position is viewed as the third line of authority at the Justice Department.
Patiently waiting in Senate queue for months to get a floor vote is Trump’s stellar Solicitor General nominee Noel Francisco.
Despite the Democrat obstruction, it should be noted that Donald Trump has made significant progress appointing judges. Working with Leonard Leo of the Federalist Society and other legal reform groups, White House Counsel Don McGahn has been quietly advancing exceptional judicial nominees. Beyond benching Justice Neil Gorsuch, Team Trump has now secured life-tenured seats for three U.S. Court of Appeals judges and a district judge.
But there is much more work to do, as there are now over 130 court vacancies (1/6th of the federal judicial judiciary). Fifty-two judicial districts have declared bench vacancy “emergencies,” and the “blue-slip” rule allowing veto by home-state senators threatens to retard appointments in deep blue states. An additional 22 judicial vacancies are scheduled by year’s end.
Johnson’s creative, common sense reform proposal
There are reports that Senate leaders may negotiate a one-time confirmation package to be implemented prior to the August recess.
But our constitutional order and our new president deserve more than an 11th hour backroom deal for an unknown number of confirmations. The American people deserve better from the U.S. Senate.
Permanent Senate rules changes are needed to allow President Trump and all future presidents to fulfill their constitutional responsibility to fully staff the government and bench federal judges.
Sen. Ron Johnson (R-Wis.) proposes just such a rules change to remedy the “breakdown in the Senate.” Johnson suggests using the 2013 Harry Reid (D-Nev.) precedent (a simple majority vote) to end the 30-hour debate rule and bring order to the confirmation process:
“Change the rules of the Senate to limit debate on sub-Cabinet and lower-court nominees to two hours on the Senate floor. Use Senate committees to vet nominees and report on them to the full Senate, where leadership can assign appropriate members to make the case for or against a nominee in the allotted two hours. Then vote.”
Now is the time to adopt Sen. Ron Johnson’s creative, common-sense reform. Perhaps now is the time for Donald John Trump to use his Bully-Twitter-Pulpit to rally Americans to demand that the Senate scrap its arcane rules.
Victor Williams is a Washington, D.C. attorney and law professor. He leads Lawyers and Law Professors for Trump – www.americafirstlawyers.com.
The views expressed by this author are their own and are not the views of The Hill.