Bench Memos

Law & the Courts

Senator Amy Klobuchar’s Claims about Post-Cloture Debate Shouldn’t Go Unchallenged

Sen. Amy Klobuchar speaks during a Senate Judiciary Committee meeting in Washington, D.C., September 28, 2018. (Jim Bourg/Reuters)

The Senate today began the process of addressing one of the tactics Democrats have used to slow the confirmation process. It voted on a resolution that would limit the time available for debate after the chamber has voted to bring debate to a close. Speaking against the change earlier today, Senator Amy Klobuchar (D-Minn.), made claims that cannot go unchallenged.

Senate Rule 22 provides a process for invoking cloture, or ending debate. This process includes the voting on a motion that asks: “Is it the sense of the Senate that the debate shall be brought to a close?” If that motion passes, Rule 22 currently allows up to 30 more hours of debate before a final vote on confirmation.

That piece of the process, called “post-cloture debate,” is the very last step in a very long process. Yet Klobuchar tried to get people to believe that this is the only time available to debate a nomination.

Senate “debate” happens in many ways, at many times, and in many venues. Senators can debate a nomination whenever, and wherever, they choose. In fact, senators need not even wait until the president actually nominates someone to debate.

Here’s an example. President Trump nominated Robert Wier to the U.S. District Court in Kentucky on August 3, 2017. The Judiciary Committee held a hearing on November 15, 2017. Democrats would not agree to schedule a confirmation vote, forcing the majority to file a cloture motion. The Senate passed that motion by a vote of 90-1 on June 4, 2018, and confirmed the nomination unanimously the next day.

So senators had ten months between Wier’s nomination and confirmation to explore, debate, scrutinize, and discuss. To suggest that the only time the Senate can debate a nomination is the last segment at the end is confirmation fraud.

Klobuchar also suggested that Trump has no problem getting judges confirmed, offering as proof the fact that the Senate confirmed 85 judicial nominees during his first two years in office, more than the 62 confirmations logged during President Barack Obama’s first two years. What she did not say was that those 85 confirmations were only 53 percent of his 159 nominations, while Obama’s 62 confirmations were 57 percent of his 109 nominations.

Finally, Klobuchar repeatedly referred to this as a “permanent” rules change. Nothing in the Senate is permanent. She was referring to the fact that the Senate voted 78-16 in January 2013 to set similar limits on post-cloture debate as the Senate did today. But that, Klobuchar says, was “temporary” because it expired at the end of the 113th Congress. Yes, and should Democrats win back the Senate in the next election, they could change or even repeal what the Senate did today, making this rules change last no longer than the “temporary” one did in 2013.

The bottom line is that, by any objective measure, Senate Democrats have impeded and undermined the confirmation process for dozens of well-qualified judicial nominees for no reason other than their desire to fight Trump on every possible front. That has needlessly hobbled the judicial branch. It must stop.

Thomas Jipping is the deputy director of the Edwin Meese III Center for Legal and Judicial Studies and a senior legal fellow at the Heritage Foundation.

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