Bench Memos

Law & the Courts

Mistaken Attack on Senator McConnell’s Proposed Cloture Reform, Part 2

Let’s move past Rachel Bovard’s misconception of the Senate’s rulemaking authority and address her three additional arguments against Senate majority leader Mitch McConnell’s proposal to reduce the hours of post-cloture debate on district-court nominees and on most executive-branch nominees from thirty to two.

1. Bovard argues that McConnell could use “existing Senate rules” to defeat Democratic obstruction. Specifically, he could allow the full 30 hours of post-cloture debate time and then, if no senator is seeking to use the time, “could immediately call the vote” and thus “rapidly diminish” the actual hours of post-cloture debate.

There are over 1000 executive-branch positions that require Senate confirmation. (The New York Times says 1,054; Wikipedia counts 1,212.) If 30 hours of post-cloture debate occurred on all of them, that would be more than 30,000 hours of Senate floor time. There are 8,760 hours in a year. So if all the post-cloture debate time were used, the Senate might be able to complete the confirmation of a president’s initial slate of nominees some time in the middle of the president’s last year in office. And I haven’t even added in the judicial nominees.

Bovard’s claim that McConnell “could immediately call the vote” if no one is seeking to use the time ignores the routine practice in which a senator, upon completing his or her remarks, suggests the absence of a quorum. That practice prevents the presiding officer (not McConnell) from calling the vote.

Bovard complains that senators are lazy. If so, why should McConnell find her alternative attractive? Her complaint that McConnell’s proposal “allows them to be even lazier” is an argument for the proposal, not against it. (Bovard also bizarrely complains that McConnell hasn’t been forcing Democrats to use all of their allotted post-cloture time.)

2.Bovard argues that the adoption of McConnell’s proposal would give the Senate “greater incentive to go hard in the paint for judges, forsaking the rest of Trump’s nominees.”

I can’t make heads or tails of this argument. McConnell’s proposal applies to district-court judges and most executive-branch nominees. So if you care about getting more of President Trump’s political appointees in place, you should be supporting it.

3. Bovard argues that the adoption of McConnell’s proposal “ultimately puts the 60-vote requirement for legislation at risk.”

Although she places it last, this, I suspect, is Bovard’s real reason. It’s the same argument that some current and former Senate Republican staffers (perhaps including Bovard, certainly including some of her close associates) made back in November 2014 for restoring the judicial filibuster after Republicans won control of the Senate. I argued back then that that proposal was bonkers, and everything since then has vindicated my judgment. If you’re happy with President Trump’s judicial appointments—most of the best of whom have been confirmed with fewer than 60 votes—you should be delighted that that effort to restore the filibuster failed.

As I wrote back then, the long-settled tradition of the Senate has been to treat debate over nominations and legislation very differently, and it’s strange that some ardent proponents of the legislative filibuster insist on linking them. The legislative filibuster owes its continued existence not to any formal obstacle that would prevent a Senate majority from abolishing it but rather to a widespread, if increasingly fragile, consensus that it is valuable. Bovard’s contention that adoption of McConnell’s proposal would have any meaningful bearing on that consensus strikes me as highly speculative at best. And, contrary to what she argues, the “payoff” from adopting that proposal, both for judicial nominees and executive-branch nominees, would be high.

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