Bench Memos

Law & the Courts

Restoring Senate Norms—Part 1

In an excellent tweet thread yesterday, Steven Duffield, who served as Senate leadership counsel for Senator Kyl from 2003 to 2008, puts in proper context the Senate’s adoption yesterday of a rule reducing the hours of post-cloture debate on district-court nominees and executive-branch nominees (other than Cabinet-level officials) from thirty to two. For ease of reading, I set forth most of his comments here (with some trivial edits, including spelling out some shorthands; I’ve added the underlining):

The handwringing from the Left on today’s Senate procedural changes is utter nonsense. In lay terms, all the Senate is doing is establishing that, once district court or (most) sub-Cabinet nominations have been open to debate for 2 hours, a final vote will occur (absent unanimous consent for more time). That’s it.

Today, the nominations are open for debate for up to 30 hours. Now it will be 2 hours. How many hours are needed?  The easiest way to figure that out is to say, well, how many hours have typically been used to debate these types of nominations?

Guess what? The answer is … something less than 15 minutes.  That’s the typical amount of time senators usually take to debate district court nominations, and it’s often ZERO minutes of debate. They just vote.

In fact, up until 2003 (when I did my historical research because of the Schumer campaign against the nomination of Miguel Estrada to the D.C. Circuit), there had only been a handful of *recorded votes* EVER on district court nominations. Confirmation was by voice vote, often en bloc.

As a Senate counsel, I read a lot of the Congressional Record on this question. You can’t see exact time stamps, but I’m pretty confident that there’s never been more than 2-3 hours of actual floor debate EVER on a district court nomination. *Maybe* once or twice. Certainly it’s true that at NO point in U.S. history have Senators actually debated a federal district court nomination for anything NEAR 30 hours.

Okay, you say, but debate might be really important. What if a true Monster is being nominated and only one Senator can see s/he was a Monster and desperately wants to make a case against that nomination?

Easy solutions. Remember there are MONTHS ahead of the final vote (pre-nomination, pre-hearing, hearing, time to mark-up, then time until floor consideration is scheduled). During all that time, senators can speak on the Senate floor (and elsewhere) and argue against a nomination. They are NOT limited to the “post cloture debate time” impacted here. Nobody is being silenced.

More importantly, if a senator actually wants to debate a nominee and needs more time, s/he’s going to be able to get unanimous consent to make the case, as long as the UC request is in good faith. That’s just Senate culture.

What we have here is a norm restoration.  We had a situation where Democrats used the 30 hour standard to block any other Senate business from taking place. Senate Rs are just restoring the traditional floor consideration of district court nominations.

Obviously the minority always wants to chew hours off the Senate calendar. That prevents more confirmations, and it prevents time for legislation.  The minority lost an obstruction tool, not debate opportunity itself. Not in any real world way.

The practical effect here is that mostly non-controversial nominations will now get votes because more time is available and the Senate will be more productive. This is great for the courts and even more important for the sub-Cabinet nominations.

It will also make time for consideration of the handful of legislative vehicles that are likely to be considered and passed this year (e.g., the Defense Authorization bill). When Congress really starts working again legislatively, this will matter a great deal.

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