As I’ve mentioned many times, the Senate is facing a nominations crisis. The traditional practice of presidential nominees moving largely by unanimous consent is over. Democrats since January have, shockingly, only let Marco Rubio through without a filibuster. Senate Republicans must fix this problem and apparently have a plan to do so by authorizing en bloc consideration of nominees — that is letting them move in groups, as is currently done for military officers.
To be clear, this is the traditional practice. Partisan filibusters of presidential nominees were virtually unheard of until Chuck Schumer — in conjunction with Harvard professors Larry Tribe and Cass Sunstein — convinced Democrats to do it to George W. Bush’s appellate nominees, in particular Miguel Estrada.
That caused a fundamental change in the Senate’s executive calendar. Suddenly the presumption flipped and members of both parties moved from “the president gets his men and women absent truly extraordinary, bipartisan deficiencies” to “the president gets nobody unless there is supermajority bipartisan support.”
Harry Reid eventually refused to sleep in the bed Schumer had made and nuked the filibuster. Schumer then weaponized post-cloture Floor time to avoid having to live with the consequences of that decision during the first Trump administration. Since then it has been an ever-escalating series of blanket holds from the left and right that confound the efficient processing of nominees. Now this obstruction has reached its near-apex with almost universal Democratic blockades and it’s President Trump who’s paying the price.
Again, the prudent move is to change the rules and let President Trump staff his administration as he sees fit while still maintaining the constitutional prerogatives of the Senate and senators. But what of the objections to it from the right? They each fail in turn.
This gives away power in the minority.
I don’t think that holds for the reasons I’ve explained before. Under Biden we simply stopped vanishingly few nominees. It wasn’t for lack of resolve or effort but rather because stopping them required cross-party opposition, which was rare. When we did stop Biden nominees it wasn’t through theatrical conservative obstruction but rather it was through surgically precise arguments from senators like Pat Toomey and Ted Cruz coupled with personal persuasion and accumulated goodwill from senators like John Thune and Mitch McConnell. In other words the strategies and tactics that actually worked under Biden are strategies tactics that would still likely be available in the future.
Prior examples of Republican blanket holds accomplished nothing. The blanket hold on flag officers did not change the Biden abortion policies at the Department of Defense and — Dolchstoßlegende mutterings on the right aside — never were going fix that problem any more than Schumer’s blanket holds will get funding back for NPR.
The blanket holds on U.S. attorneys didn’t stop the lawfare against President Trump. (The American people did that.) The only practical effect has been to incentivize Dick Durbin to return the favor on that particular escalation, making it difficult for President Trump to bring the vast majority of U.S. attorney’s offices in line.
None of these efforts at strategic obstruction under Biden accomplished any policy goals, in large part because Democrats can rely on the deep state to do their bidding in the absence of political leadership. Republicans can’t.
There’s no good policy reason for conservatives to favor minority rights that hurt Republicans in practice but not Democrats. It’s preserving the right to make a point, not to make a law, with President Trump bearing the costs.
Thune should just keep the Senate in nights and weekends to clear the backlog.
The first problem is that there are so many vacancies out there that it’s not clear that would even work.
Furthermore, the majority is always at a disadvantage in a death march because the minority only needs to post enough votes to keep the majority guessing. It will fall on Republicans to show up while Democrats can do what they want.
Lastly, while I know people don’t like this argument, it’s true: Republican senators won’t stand for it. Thom Tillis, Joni Ernst, and Mitch McConnell are retiring there’s literally no political pressure that be brought to bear on them to show up if they don’t want to. If Ken Paxton succeeds in defeating John Cornyn, you suddenly have a majority-making bloc that can do whatever it wants. The base can complain about this until they’re blue in the face, but it’s simply a fact. Also, it’s generally not McConnell or Susan Collins or Chuck Grassley or John Thune who’s missing votes. This is an area where activists are writing checks their senatorial allies will not be eager to cash.
It will empower Senate leadership.
I hate to be the bearer of bad news, but Senate leadership is already empowered. It’s the Majority Leader who decides which votes take place and if he wanted to cut deals with Democrats to advance “establishment” nominees, he already can.
(Why would President Trump nominate such people to begin with? This objection is more of an implicit criticism of the president than it is of Senate leadership.)
As it stands, “holds” on nominees are respected out of custom, not because of any conference rules. The fool-proof way to stop nominees as a conservative is the same today as it would be en bloc: Post more votes than the other side on the Floor. Otherwise, either way, it’s trust in leadership to follow established custom, whether nominees are considered seriatim or as a group. Regardless, I can perhaps count on one hand instances in recent history when Republican Floor holds were not respected and any en bloc process would surely involve running the Republican hotline to sus out objections.
The Senate should allow recess appointments.
Why senators would want to cede their role in the advice-and-consent process entirely — either in unified or divided government — is a mystery. The separation of powers as a protector of liberty is based on the three branches jealously guarding their prerogatives, even in the face of desired policy.
But even if that appeal to constitutional principle doesn’t work, it’s still bad policy. If President Trump successfully prorogates Congress, what’s to stop President Newsom from doing the same? Ceding back the power of recess appointment will cripple the powers of a Republican Senate against a Democratic president. Learn from Harry Reid: Bad things can happen when circumstances change.
It’s possible that some conservative senators may assume that they’ll have more influence in administration staffing if the ultimate decision lies not with leadership or “the establishment” but rather with a White House where they are in good standing. In reality they’d be giving the White House even more influence over them as senators, not the other way around. You can see the conversations, clear as day: “I see you want your staffer appointed to be an assistant secretary (or commissioner or U.S. attorney). Interesting! Question: Will you stand with the President in opposing Thomas Massie and Chip Roy?” This is not a criticism of the White House political operation; it’s the rational incentive that recess appointments would establish. They’d be unwise not to do it! From the perspective of senators, though, why would they want to hand over leverage over themselves?
In sum, the arguments against a rule change either don’t reflect recent political reality or are based on incentives that don’t align with those of Republican senators—even the most conservative of them. The crisis is brewing and Senate Republicans should act swiftly to solve it and give President Trump the administration the people voted for. They should approve unrestricted en bloc voting for nominees.