Democrats are eyeing the wrong approach to Tuberville’s blanket hold

Senators are again blaming the Senate’s rules for an impasse they created. According to reports, Sen. Tommy Tuberville (R-Ala.), has placed a blanket hold on more than 200 military nominations — including five joint chiefs of staff members — to prevent the Senate from confirming them. Tuberville first placed his hold in February to protest the Department of Defense’s abortion policy. Since then, efforts to negotiate an end to the impasse have been unsuccessful. 

Majority Leader Chuck Schumer (D-N.Y.) called Tuberville’s campaign a “dangerous blockade.” And Sen. Chris Van Hollen (D-Md.) argued that it is “eating away at our national security, it’s putting our national security at risk and the longer it goes on, the more dangerous it can get.”

Tuberville’s blanket hold has some Democrats considering changes to the Senate’s rules that would make it harder to obstruct nominations in the future. Sen. Debbie Stabenow (D-Mich.) stated that she does not “think one person should be able to hold up the promotions and lives of everybody in the military or any other part of government.” Sen. Elizabeth Warren (D-Mass.) suggested changes were needed because Republicans like Tuberville “have learned to exploit” the existing rules. Warren warned that the Senate “can’t continue in a world where one senator puts our entire national defense at risk because he doesn’t like one policy followed by the Department of Defense.”

Yet changing the Senate’s rules will not end the impasse. This is because the rules are not responsible for Tuberville’s “dangerous blockade.” They do not allow Tuberville — or any other senator — to singlehandedly block military nominations for five months and counting. Democrats give Tuberville that power instead by asking for his permission — or consent — to waive the Senate’s rules to confirm the nominations by unanimous consent. Democrats can overcome Tuberville’s obstruction by using the same rules they claim are the problem.

Confirming a military nomination using the Senate rules is a straightforward process. After the Armed Services Committee reports the nomination, it is placed on the Senate’s executive calendar. And once a nomination is on the executive calendar, any senator can ask the full Senate to debate it by offering a nondebatable motion to proceed to its consideration. Other senators cannot filibuster that motion. The Senate votes on whether to debate the nomination immediately after a senator motions to proceed to the consideration. A simple majority of senators present and voting (typically 51) is required to approve the motion.

However, senators can filibuster a nomination once the Senate agrees to begin debate on it. As a result, the Senate’s presiding officer cannot call a vote while a senator is speaking or seeking recognition to speak. The Senate typically uses the cloture rule to end debate when that happens. Until 2013, that rule required a super-majority vote (typically 60) to end debate (i.e., to invoke cloture) on a nomination. Democrats used the nuclear option that year to reduce the number of affirmative votes to end the debate on “all nominations other than for the Supreme Court” to a simple majority of senators present and voting (typically 51). And Republicans used the nuclear option in 2019 to shorten the maximum amount of debate permitted under the rule after the Senate invokes cloture on a military nomination from 30 hours to two hours cloture. In other words, a simple majority of senators can overcome a filibuster of a military nomination and — two hours later — vote to confirm the nominee.

Yet Tuberville’s effort has Democrats wanting to speed up the confirmation process even more by changing the Senate’s rules. But changing the rules isn’t necessary. They already give Democrats several ways to overcome Tuberville’s obstruction. For example, senators can use Rule XIX — the so-called two-speech rule — to limit the time Tuberville can filibuster each nomination he is holding. Under the rule, Tuberville may speak twice on a nomination on the same legislative day. Tuberville cannot speak again after he has given the two speeches allowed to him under the rule. The Senate votes at that point if there are no other senators on the floor who wish to, and may, speak.

Some Democrats still worry that waiting Tuberville out would “turn the Senate into a very slow-moving nomination confirmation process.” They argue that voting on each nomination would leave little time for the Senate to consider other important policies. But changing the rules won’t solve this problem. The Constitution empowers senators to request a recorded vote. However, the Constitution also stipulates that a senator must have the support of “one fifth of those Present” to force a recorded vote on a nomination. That number fluctuates from 11 to 20, depending on the number of senators present. The presiding officer denied senators a recorded vote when they did not have the required support on the floor. For example, the presiding officer denied Sens. Ted Cruz (R-Texas) and Mike Lee (R-Utah) sufficient seconds in 2015 at the direction of then-Majority Leader Mitch McConnell (R-Ky.) The Senate uses a voice vote when it does not — or cannot — produce a sufficient second for a recorded vote.

Finally, Democrats may shorten the time needed to confirm each of the military nominations that Tuberville is slowing by moving to suspend the rules to allow for their consideration and confirmation en bloc. Senate Rule V stipulates that a senator must motion to suspend the rules in writing on one day’s notice. The first vote on the following day is on suspending the rules. It requires a two-thirds vote (typically 67) to pass. If the motion to suspend is successful, the Senate votes on the underlying question. A simple majority of senators is needed at that point.

It isn’t clear how many Republicans support Tuberville’s effort. Sen. JD Vance (R-Ohio) recently announced that he would similarly slow action on future Department of Justice (DOJ) nominations — U.S. Marshal Service excepted — to protest the DOJ’s indictment of former President Trump. He needs anywhere from 10 to 32 other senators to join him to prevent Democrats from using the Senate’s rules to confirm the 200-plus military nominations he is holding. And that appears unlikely to materialize in the face of a determined Democratic majority. McConnell recently announced that he opposes blocking votes on military nominations. And Republican defense hawks will likely join him as the standoff continues.

Democrats shouldn’t blame the Senate’s rules for a problem they created. If they don’t want Tuberville to hold military nominations, they shouldn’t ask for his permission to confirm them.

Using the rules may take a little more work. But the effort required pales compared to the danger Democrats claim Tuberville’s gambit poses to national security.

James Wallner is a senior fellow at the R Street Institute and a lecturer in the Department of Political Science at Clemson University. Before joining R Street, James was the group vice president for research at the Heritage Foundation. He spent over a decade on Capitol Hill earlier in his career working in senior positions in both the House and Senate.