Senate’s 30-hour per nominee fake debate rule hobbles departments, agencies, and district courts

In his State of the Union address, President Donald Trump directly addressed a two-year shutdown that has been damaging our national government. Senate Democrats have purposely obstructed the confirmation of Trump nominees since early 2017:

“This new era of cooperation can start with finally confirming the more than 300 highly qualified nominees who are still stuck in the Senate — some after years of waiting. The Senate has failed to act on these nominations, which is unfair to the nominees and to our country.”

{mosads}The confirmation shutdown severely damages not only the operation of the government but the business of the nation.

And, as President Trump noted, the obstruction is fundamentally unfair to nominees whose careers and personal lives are on put on ice for months and years. 

In additions to hundreds of top executive vacancies, scores of other critical offices in agencies, independent boards, and regulatory commissions remain unfilled.

One out of six federal district court benches remains empty; this trial judge shortage is overloading and harming our entire judicial system. The U.S. Judicial Conference lists more than 70 court jurisdictions having vacancy-driven “judicial emergencies.” 

As an academic, I have supported appointment authority of the past four presidents without regard to their party. I have long studied the escalating cycle of Senate confirmation obstruction and partisan payback. However, the confirmation obstruction against Trump nominees is unprecedented and genuinely dangerous. 

While the Trump administration insured a steady flow of nominees to the upper chamber, Democrats doubled-down on obstruction. Recent presidents have been afforded almost twice as many Senate confirmations going into their third year as has Donald Trump. 

 30-Hour Fake Debate Rule

The Senate minority uses a variety of procedural tricks to keep the Trump administration and the federal courts short staffed. Extreme slow walking and privileged “holds” have become standard practice. In early January, Democrats demanded that pending nominees be returned to the White House at the end of a 115^th Congress – thus restarting the entire nomination/confirmation process.

One particularly disgraceful obstructionist tactic involves Democrats demanding extra fake debate time for each nominee. Senate rules allow 30 hours of additional debate for each nominee after the Senate votes on cloture to end debate if requested by the minority.

Since early 2017, Democrats have forced the Majority Leader Mitch McConnell (R-Ky.) to schedule 30 hours of debate time for almost all Trump nominees. Senators do not actually debate. It is a 30-hour fake debate for each nominee. 

Almost a week of Senate floor time is wasted for each confirmation vote. Hundreds of Trump nominees are left twisting in the wind and other Senate business is disrupted.  

If federal employees deserve honor for having endured the uncertainty of the partial government shutdown, surely great credit must go to the many Trump nominees who brave this disgraceful confirmation endurance test.  

It is a patriotic nominee who is willing to go through the partisan and often defamatory committee gauntlet only to then wait months or years in queue for a Senate floor vote.  

Reform the 30-Hour Fake Debate Rule and End Confirmation Shutdown

McConnell has successfully prioritized the confirmation vote  scheduling of Cabinet officers and appellate (circuit) judges. And President Trump has made exceptionally strategic use of making “acting” appointments using the Vacancy Reform Act.  

Meanwhile, however, Democrats’ abuse of the 30-hour rule has backlogged hundreds of district court judges, independent agency regulators, and executive branch officers.   

Senate Republicans are again promising a specific reform of the rule. To their credit, both Sens. Roy Blunt (R-Mo.) and James Lankford (R-Okla.) are pushing hard for the reform measure. Blunt described the Democrats’ abuse of the rule as “nothing more than obstruction for the sake of obstruction and it is outrageous.”

The modest change reduces debate time for non-Cabinet executive nominees from 30 hours to eight and for trial court nominees from 30 hours to two. Appellate judges, independent commissioners, and SCOTUS confirmation would still require 30 hours.

Following Senate precedent established by Democrats in 2013, only a simple Senate majority vote is needed for confirmation cloture rule reform. It is thus fair to see the post-cloture rules change as normal not “nuclear.”

It is past time to end the two-year confirmation shutdown that continues to hobble critical departments, agencies, and courts across the nation. Senate Democrats continue to obstruct and reject Trump’s call for “a new era of cooperation.”  

It is now up to the Senate Republican majority to implement rule reform to end this confirmation shutdown.

Victor Williams is a longtime Washington, D.C. attorney and law professor. He leads Lawyers and Law Professors for Trump  – www.americafirstlawyers.com.