Mitch McConnell’s Pre-emptive Nuclear Strike
(Bloomberg Opinion) -- Majority Leader Mitch McConnell and congressional Republicans are changing the way the Senate handles nominations for the third time in the last three years with a series of votes on Wednesday. McConnell is once again going “nuclear.” That’s the Senate jargon for altering the way the chamber operates to require just a simple majority vote to change the rules, instead of the 67-vote supermajority that is needed now. This time, he’s going nuclear to slash the available debate time on most judicial and executive branch nominations.
Opponents call this breaking the Senate rules to change the Senate rules. In fact, however, much of how the House and the Senate do things depends as much on established precedents, along with custom, as on the formal rules of each chamber. McConnell isn’t breaking the rules – but he certainly is, once again, violating the spirit of the way the Senate has operated.
Republicans have already eliminated the need to get a 60-vote supermajority to defeat filibusters on Supreme Court nominees, and have ended the “blue slip” practice on circuit court nominees that allowed home state senators to block appellate judges. McConnell’s proposal would cut the amount of time the Senate has to spend on each nominee.
Traditionally, the time question wasn’t a problem, because many nominations were disposed with quickly, with either voice votes or by unanimous consent. Over the years, confirmation has taken longer. Now, Democrats are foot-dragging – just as Republicans did when Barack Obama was president and Democrats had the Senate majority – and so McConnell is seeking to expedite things by changing the rules.
McConnell is using an extreme measure to tackle a relatively small problem. When Democrats used majority-imposed reform in 2013 to eliminate the need for a supermajority on judges (except for the Supreme Court) and executive branch nominees, they were responding to a blockade by Republicans, who were using the filibuster to prevent any Obama nominee from being confirmed for those posts. Given that position, and the unwillingness of the Republican minority to stick with a negotiated compromise or to cut another deal, Democrats were essentially given the choice of either majority party rule (by eliminating the filibuster) or minority party rule (by allowing Republicans to keep vacant any office or spot on the federal bench). Republicans had ruled out the traditional Senate option, the give and take of bargaining in which they would block the nominees they hated the most and extract policy promises from others in exchange for allowing the rest to pass.
So the Democrats’ elimination of the filibuster for executive and and most judicial nominations was a reaction to Obama-era Republican obstruction that was historically unusual. Since Donald Trump became president, however, Republicans have changed the rules as pre-emptive action against possible Democratic obstruction. In 2017, Republicans eliminated the need for a supermajority on Supreme Court nominations after Democrats initially defeated Trump’s first nominee, Neil Gorsuch, by filibuster – but before Democrats had said they would form a blockade against any Trump nominee. Republicans could have compromised on a more moderate conservative (or perhaps an older one), but instead they changed the rules at the first opportunity.
Then the Judiciary Committee stopped respecting the “blue slip” tradition on circuit court nominations, even though there’s no evidence that Democrats were abusing the process or even that Democrats were behaving any differently than Republicans had during the Obama presidency.
And now Republicans are moving to cut short debate time on nominations.
McConnell has complained about some specific nominations that have been waiting for confirmation for a long time, but that’s clearly disingenuous; the majority leader is the one who chooses which nominations come to the Senate floor, and as long as Republicans are unified they can confirm anyone in whatever order McConnell wants. What is true is that Democrats have been clogging up the process, probably a bit worse than Republicans did when Obama was president; the Senate executive calendar, which holds all the nominations ready to go to the Senate floor, was a little longer at the end of 2018 than it was in 2014. But Democrats aren’t the only ones at fault. What usually has happened is that eventually, generally before Senate recesses, the majority and minority agree on a package of noncontroversial nominees to confirm in bulk. There’s been some of that during the Trump presidency, which demonstrates that Democrats certainly have not been delaying things as much as they could. What we don’t know is which party is responsible for failing to craft agreements to free up the pipeline. But nothing McConnell has said has been convincing on that question.
Meanwhile, as Congress scholar Josh Huder argues, the decision by McConnell and the Republicans to change the rules on debate time is a far bigger deal than it might look. Huder argues that what’s happening here is a major step toward not only eliminating the legislative veto as well, but generally making the Senate into a copy of the House in which the majority party runs things how it likes, regardless of the written rules.
The truth is that McConnell didn’t try to make a deal in 2013 or 2017, and he hasn’t tried this year. Or, for that matter, when George W. Bush was president, and Republicans were trying to stop Democratic filibusters against a handful of nominees. That’s in part because McConnell’s always seeking partisan advantage, though that doesn’t make him any different from any other Senate leader. Perhaps the simplest explanation for why he has had so little respect for the chamber’s norms is that he just prefers a Senate that looks like the House, where the majority party rules and the minority party has little influence, and he’s been trying to get one for years. Or maybe he’s just willing to ignore the long-term consequences of his actions, no matter how grave they are, for small short-term partisan advantages, no matter how small they are.
Technically, as Senate mavens will tell us, none of these changes are actually shifts in Senate rules, but are instead changes to practices and precedents. That's actually important in some senses, but it's easier to just call it changing the rules, so that's what I'm going to do.
It's hard to quantify, but it's also the case that Obama was more likely to consult with the Senate before nominating people to the executive branch, and had a lot fewer cases of nominees who wound up in ethical or other trouble after being confirmed, than Trump has. In other words, what's changed may not be additional foot dragging by the minority party; it probably the case that there are a lot more controversial nominations and that's what's slowing things down.
This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.
Jonathan Bernstein is a Bloomberg Opinion columnist covering politics and policy. He taught political science at the University of Texas at San Antonio and DePauw University and wrote A Plain Blog About Politics.
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