Last Thursday, in order to get out of the Senate Judiciary Committee the controversial nomination of Vanita Gupta to be Associate Attorney General, committee chairman Dick Durbin flagrantly violated committee rules. A Republican aide to the committee has provided me this detailed explanation:
Reporting out controversial nominees from the Judiciary Committee is hard. Under Committee Rule IV and precedent, members have unlimited debate unless debate is stopped by a majority vote. This reality caused countless headaches for Republicans over the past four years. Republican Senators would have to sit there, week after week, as Democrats read from Vanita Gupta’s opposition research on President Trump’s nominees. Republican staff would coordinate with the Floor to avoid counterprogramming votes and monitor the two-hour rule. Competing committee obligations would require majority staff to coordinate with members and their chiefs to make sure they were where they needed to be when they needed to be there. Republicans were prepared for any and all procedural shenanigans the Democrats could employ. Without a doubt managing markups is the most difficult and important job a Judiciary Chair has in advice and consent—and unlike in many other committees, in Judiciary it’s always a fight.
So in that context, last week’s markup was unsurprising. Senator Grassley made it clear that—unlike at the Garland markup—Republicans wished to speak before voting. It wasn’t Republicans’ fault that Democrats had scheduled a vote sequence on the Senate floor for 10:45. Senators Grassley, Cornyn, Lee, Cruz, Hawley, Cotton, and Blackburn all made their views known on Ms. Gupta, each providing his or her own reasons for opposing her nomination. Contrary to Chair Durbin’s speculation at the outset of the hearing it isn’t because they oppose “voting rights”; it was because they found her record extreme and her answers evasive.
Democrats didn’t seem too interested in listening to these explanations. Why bother? Eventually Chair Durbin got so annoyed with Republicans talking that he started running timers on their speeches, even though members are entitled to unlimited debate under the Committee Rules. By the time Senator Cotton was five or so minutes into his speech—with Senator Tillis waiting to provide his two cents, posters and all—Chair Durbin cut him off, announced that the two-hour rule had been invoked (that is, Republicans refused to waive a standing Senate rule that prevents committees from meeting more than two hours after the opening of the Senate, which had been at 10:00 am), and proceeded to call the roll. (Video clip here.) As multiple members pointed out, this violated Committee Rules. It also violated precedent. It has long been recognized that a majority of the Committee has the power to end debate, but the Committee currently lacks a partisan majority. So Chair Durbin just did it himself. It was an unprecedented arrogation of power to the Chair.
Again, the two-hour rule and concurrent voting are simply things you need to be aware of when you’re trying to vote out controversial nominees. Indeed, Democrats used the two-hour rule to short-circuit a markup on Jeff Sessions on January 31, 2017. The Committee filibuster and the two-hour rule are simply part of the lay of the land that you have to manage when you hold the gavel, even if it’s inconvenient for you and your members. Instead the Democrats shredded the Committee Rules to allow Ms. Gupta’s nomination to get an 11-11 vote.






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