I wrote recently about the need to move nominees out of committee as quickly as possible when the Senate returns, citing Chairman Chuck Grassley as the example to follow. Grassley has announced that he will be holding two nominations hearings in November to process the current backlog of judges, including the nominee to the Fifth Circuit, Todd Butler.
Democrats, it seems, don’t like this and have gone complaining to the press corps about it. Traditionally, you see, there are two weeks between nominations hearings. Per Punchbowl News, Democrats are saying that they’ll “consider the precedent broken and will likely hold more frequent nomination hearings under a future Democratic administration.”
This is silly. First of all, timing of hearings is a matter of custom and not of precedent. It’s like the so-called 28-day rule whereby the chairman needs to wait 28 days after receiving a nominee’s questionnaire before holding a hearing. Yes, that’s the standard practice but it’s neither a rule nor a precedent. When circumstances demand it — as in the Barrett nomination — it can be shortened at the discretion of the chairman.
It’s the same principle with hearing timing. Yes, there are usually two weeks between nominations hearings, but nothing says there needs to be. It’s simply custom, and custom can give way to circumstances.
Indeed it frequently has. As the Judiciary Committee Republicans note, there have been 36 hearings with fewer than two weeks between them since the Obama administration. Nearly 70 percent of these have taken place with Democrats in the majority. Grassley, while ranking member, agreed to 16 of them. To quote Punchbowl, “The difference now: Democrats are saying no.”
Yeah, they’re being petulant. No one has accommodated Democratic requests over the years more than Grassley. One such example was during the 2022 lame duck, when Democrats considered nine district-court nominees and two executive-branch nominees in under two weeks.
It was a similar situation in the run-up to the 2014 midterms when Democrats processed ten Article III judges over the course of eight days in September. They did the same that July for ten districts, as well as in May for ten districts and two circuits. In all those circumstances (1) the filibuster had been abolished the previous November, so Republican floor leverage was compromised and they were mad as hornets about it, and (2) Republicans were (rightly) expected to retake the Senate. And yet Grassley consented to speed up the hearings.
Grassley did this in part because he’s a gentleman. He’s also not an idiot. He knew perfectly well that in matters of custom he had no power to stop Democratic chairmen from exercising their discretion. That left him with two choices: to whine impotently about how unfair it all was or to accommodate the Democrats. Democrats are taking the former course of impotent whining.
It’s worth considering the workings of the Senate more broadly. The vast majority of what it does is moved along through consent and accommodation. Senators are, for the most part, friendly with each other and willing to extend courtesies across party lines. This is less often the case in the gladiator pit of the Judiciary Committee, but the principle still has considerable application even there.
Sometimes, though, things need to get done. And when that happens, those with power exercise that power to get an outcome, courtesy be damned. One example of this, previously mentioned, was the Barrett nomination. There simply wasn’t time for courtesy so it fell to Chairman Lindsey Graham to act, and all Democrats could do was complain and send silly poster boards to take their place as they futilely boycotted.
Another example, on the other side of the ledger, was the nomination of Vanita Gupta to be associate attorney general. There, Republicans had executed a talking filibuster during her markup, with the goal being to draw the meeting out beyond two hours past the opening of the Senate, thereby shutting it down under the Senate Rules (the so-called two-hour rule). Chairman Dick Durbin (D., Ill.), having figured this out, simply took the floor from Arkansas Republican Tom Cotton (mid-speech) in violation of parliamentary procedure and called the vote. Was it courteous? No. Was it effective? Absolutely. Gupta got out of committee and was later confirmed.
The willingness of the majority to accommodate the minority is generally proportional to the policy stakes of the exercise. Here — as with the Obama- and Biden-era judicial confirmations — the stakes are high and the majority will have its way.
How, then, to respond? Yesterday having been St. Crispin’s Day, Henry V is perhaps instructive. Recall King Harry’s words to the governor of Harfleur:
Therefore to our best mercy give yourselves
Or, like to men proud of destruction,
Defy us to our worst. For, as I am a soldier,
A name that in my thoughts becomes me best,
If I begin the batt’ry once again,
I will not leave the half-achieved Harfleur
Till in her ashes she lie burièd.
The gates of mercy shall be all shut up,
And the fleshed soldier, rough and hard of heart,
In liberty of bloody hand, shall range
With conscience wide as hell, mowing like grass
Your fresh fair virgins and your flow’ring infants.
If you know you’re going to lose, just lose quickly and move on to the next thing. Offer the accommodation to the chairman, bank the goodwill, and fight the next battle. That’s the prudent Grassley course.
Democrats, it seems, would prefer to whine — and still lose.