This past weekend, I argued that the prudent move for Republican senators is to take aggressive steps to streamline the nominations process. Tuesday’s Punchbowl provides some insights into how that could play out.
To begin with, they note that Senator Schumer (D., N.Y.) sent one of his “Dear Colleague” letters on government funding in which he — as predicted — seems to link avoiding a shutdown to President Trump’s funding rescissions. Luckily, because Schumer always insists on telegraphing his moves, Senate Republicans can be confident that Schumer was going to invite a shutdown regardless of what they do on nominations.
What could such a move to streamline nominations look like? Per Punchbowl, “Several options are under consideration but there’s particular interest in a proposal that would allow senators to vote on up to 10 nominations simultaneously if they were approved by the same committee.” It also notes that Senator Klobuchar (D., Minn.) proposed something similar in 2013 along with Senator King (I.) of Maine. That proposal would essentially just change the rules to allow up to ten non-cabinet, non-appellate nominees from the same committee to be considered as one would normally be considered.
Notionally, this is a good idea, although the devil is obviously in the details. The cap of ten nominees — and the requirement that everyone be from the same committee — sound better in theory than they do in practice.
Take the cap: It works if the en bloc consideration is being undertaken under the current two-hour rule of post-cloture time, because then you’re essentially just multiplying the number of nominees currently capable of consideration by a factor of ten. It’s unclear, though, that the change to en bloc consideration would also incorporate the 2019 timing change — it would depend on the mechanics of the rule-change process. If the change sends post-cloture time back to 30 hours, then the cap of ten would be counterproductive. First, once you account for voting time and post-cloture time, it’s not clear that ten nominees over 30 hours is any different from ten nominees over two hours each. Second, once Democrats realize that Republicans are still constrained, they’ll probably extend their obstruction to military flag officers (citing Senator Tuberville as precedent) and thereby expand the confirmation demand to exceed the new Floor time supply, and Republicans will be in a worse place than where they started. At some point, Senator Thune will need more flexibility than a ten-nominee cap gives him, so the conference might as well just give it to him now and save itself another vote later.
The single-committee restriction seems less obviously problematic. The fact is that most of these nominees will be coming from Judiciary, Foreign Relations, or Armed Services, so allowing each of them to stack nominees en bloc will still clear the Floor. It also could theoretically give the chairmen a greater say in what happens on the Floor.
On the other hand, it’s unnecessary. There are a dozen other committees that will have nominees in fits and spurts, and forcing those to go a few at a time — with 30 hours post-cloture — will slow things down. Furthermore, insofar as the thematic goal here is to approximate the old unanimous-consent model, it’s unclear why non-controversial nominees from, say, the Veterans Affairs Committee shouldn’t just catch a ride with moving nominations packages from other committees. That’s essentially how it would have worked until Donald Trump had the temerity to win an election.
If Punchbowl is right about what Senate Republicans are considering, en bloc consideration without caps and without committee restrictions seems like the best way to proceed.
The alternative would be “nuking” post-cloture time (again) to bring it down from two hours to zero, making each nominee’s votes back-to-back. While this would be simple to execute and in line with Republicans’ 2019 action, it would present its own difficulties. First of all, as with an en bloc cap, this would incentivize Democrats to expand their tactics to include a Tuberville blockade of flag officers only to slow things down. (Or, if not Democrats writ large, a Democrat: As was seen with Senator Tuberville, it only takes one to stop unanimous consent.) In which case, this solves nothing.
Second, forcing members to stay on the Floor all day, every day, on a perpetual death march — as would be necessary — will fray nerves and jeopardize nominees. Beyond the irritation among Republican senators who wouldn’t be able to attend hearings, do press hits, or meet with constituents because they’ll be too busy serving as executive-branch HR, it would also put Republicans at a tactical disadvantage. This is because it’s up to Thune to post a majority, while Schumer can let his members come and go as needed, both to tend to their schedules and to launch attendance-based sneak attacks on targets of opportunity. This is not a durable solution.
Tellingly, Punchbowl placed this in the context of the coming funding fight, and it will definitely be a fight. Congress also needs to pass the annual defense authorization this year, and the Senate will have a number of circuit judges to confirm. This is putting aside whatever must-pass extensions are looming on the horizon, like Coast Guard reauthorization.
In other words, Floor time will be an unusually precious resource for the rest of the year. Republicans should give Senator Thune the tool he needs to steward it effectively. By the look of it, that’s the ability to call up uncapped, unrestricted, en bloc nominations.