The Senate is considered the world’s greatest deliberative body. One of the unique features of the Senate is that all Senators are equal. They only defer to their leaders by tradition to help with the orderly flow of business. But right now Senators McConnell and Schumer, using a proposal drafted by Senators Blunt and Lankford, are conspiring to end that and, instead, give themselves super powers within the Senate.
This would be fundamentally transformative in the Senate and for the worse.
The change McConnell is proposing would curtain Senate debate on nominees. That sounds great with Republicans in charge. But wait till the Democrats get the Senate back. What’s more, it would allow the majority and minority leaders in the Senate to decide which senators get to participate in debate.
That is fundamentally against the traditions of the Senate. And we can see how this would work. Senators like Rand Paul who often object to nominees based on libertarian grounds would be prohibited from debate on a nominee. Senators like Mike Lee or Ted Cruz could be too as they often raise concerns from conservative jurisprudence.
James Wallner has more on what is happening in the Senate and I can only hope the Senate balks at this supposed compromise.
The proposal, authored by Roy Blunt of Missouri and James Lankford of Oklahoma aims to make it harder for senators to delay the confirmation process after the Senate has invoked cloture on a nominee but before a final vote. Rule XXII (i.e., the cloture rule) currently limits post-cloture debate time to no more than 30 hours and stipulates that “no senator shall be entitled to speak in all more than one hour” during that period. The Blunt-Lankford proposal would cap that period at two hours for nominations to fill some executive-branch and judicial positions. The lower cap would not apply to Supreme Court, Circuit Court, or Cabinet-level nominees. However, the proposal stipulates that for nominations to fill those positions “the period of post-cloture consideration shall be equally divided between the majority leader and the minority leader.”
Changing the Senate’s rules to facilitate the confirmation of presidential nominations subject to the two-hour cap limits significantly the ability of senators to express their concerns about a nominee if they do not serve on the relevant committee of jurisdiction or in leadership. Under current practice, the majority has an incentive to end debate preemptively thanks to Democrats using the nuclear option in 2013 to lower the threshold for invoking cloture on all nominations (other than for the Supreme Court) from three-fifths of senators to a “majority vote” and Republicans using it in 2017 to lower it for Supreme Court nominees. Consequently, today’s majorities are less likely to allow meaningful debate to occur on a nominee before cloture is invoked if doing so decreases the chances that he or she will be confirmed.
If the Senate GOP is willing to scuttle the rules of the Senate twice, it just gets us one step closer to ending the legislative filibuster as well. It is preferable for the GOP to walk this back and just acknowledge that in the world’s greatest deliberative body there should be nothing wrong with deliberating even if it slows things down.