GOP Invokes ‘Nuclear Option’ to Fill Court Openings Faster

WASHINGTON (CN) – Invoking the so-called “nuclear option,” Senate Republicans on Wednesday began the process of changing Senate rules to speed up consideration of some of President Donald Trump’s nominees, including those up for seats on federal district courts.

In this March 5, 2019, file photo, Senate Majority Leader Mitch McConnell, R-Ky., speaks at the Capitol in Washington. Senate Republicans frustrated at Democratic stalling tactics on President Donald Trump’s appointments are taking steps to change Senate rules to significantly shorten debate time on most nominees. (AP Photo/J. Scott Applewhite, File)

Republicans attempted to formally change the rules through a resolution on Tuesday afternoon, but all Democrats voted against it and the measure did not get the 60 votes necessary to move forward. The failure was expected, however, and set up the Republican plan to change the rules using a procedural method referred to as the “nuclear option.”  

The tools Republicans used Wednesday are similar to those they employed in 2017 to eliminate the filibuster for Supreme Court nominees. Senate Democrats made a similar move in 2013, doing away with the filibuster for nominees to all federal courts but the high court.

Senate rules have allowed for up to 30 hours of debate on nominees between a procedural vote known as cloture and a final confirmation vote. Under the change Republicans enacted on Wednesday, that time will go down to two hours for nominees to sub-cabinet level administration positions.

Later in the day, Republicans did the same to change the rules Trump’s nominees to federal district courts.

Though senators do often come to the Senate floor to make speeches about nominees during this time, they typically do so to an empty chamber, with most of the substantive discussion of nominees taking place in committees.

The change cuts up to 28 hours off of the Senate’s consideration of nominees, a process that can last months. All nominees a president puts forward go to a Senate committee, which does the work of evaluating their merits.

Judicial nominees, for example, often take several months to process, submitting detailed questionnaires to the Senate Judiciary Committee and appearing for a confirmation hearing where senators can ask them questions. 

The nominees then typically must wait at least two additional weeks before they are sent to the Senate floor for a confirmation vote. Still, the rules change will speed up consideration of Trump’s nominees by increasing the number of nominees the Senate can confirm each week.

In order to change the rules, Senate Majority Leader Mitch McConnell, R-Ky., first called up the nomination of Jeffrey Kessler, who is up for the position of assistant secretary of the Department of Commerce. After successfully advancing the nomination, McConnell raised a point of order saying the post-cloture time on Kessler should be just two hours, not the 30 hours called for under the rules.

After McConnell’s point of order was rejected, he appealed the decision, setting up a simple majority vote to enact the new two-hour rule for nominees to lower-level agency positions. Fifty-one Republicans voted in favor of changing the rules, with Senators Susan Collins, R-Maine, and Mike Lee, R-Utah, being the only defectors.

Before the vote, McConnell complained of Democrats requiring cloture votes on even uncontroversial nominees in an effort to slow down the pace of Trump’s confirmations. He said this has brought “partisan paralysis” on the nominations process, leaving the administration understaffed and depriving the president of the opportunity of appointing judges.

“This systematic obstruction is unfair to our duly elected president and more importantly, it is disrespectful, disrespectful, to the American people who deserve the government they elected,” McConnell said in a floor speech Wednesday afternoon.

McConnell later blamed Senate Minority Leader Chuck Schumer for setting the acrimonious terms of the fight over judicial nominees, noting the New York Democrat was on the leading edge of senators who filibustered President George W. Bush’s judicial nominees.

“He started this whole thing that we’ve been wrestling with since 2003,” McConnell said on the Senate floor, pointing at Schumer.

But Democrats have accused Republicans of trying to have it both ways – complaining of obstruction from across the aisle while at the same time hailing the record numbers of judicial nominees confirmed under their majority.

“This is a very sad day for the Senate,” Schumer said just before the vote Wednesday. “At a time when Leader McConnell brags about confirming more judges than anyone has done in a very long time, he feels the need to invoke the terrible destructive and disproportionate procedure of the nuclear option in order to fast-track even more of President Trump’s ultra-conservative nominees to the federal bench.”

Schumer noted some of Trump’s most controversial judicial nominees failed in the last moments before their planned confirmation votes. One such nominee was Thomas Farr, a nominee to the U.S. District Court for the Eastern District of North Carolina. Farr’s nomination was pulled back just before his confirmation vote after Senator Tim Scott, R-S.C., expressed opposition over his record on issues related to race.

Scott similarly sank Ninth Circuit nominee Ryan Bounds over objections to his writings about race while a college student.

“Had we had only two hours, horrible, horrible nominees, way beyond the bounds of normal nomination and discourse, even from conservatives, like Farr, like Bounds, would be sitting on the courts today,” Schumer said on the Senate floor Wednesday.

The debate over the rules change also dredged up a long-running fight over the Republican blockade of D.C. Circuit Judge Merrick Garland, whom President Barack Obama nominated to the Supreme Court in 2016 after the death of Justice Antonin Scalia. Republicans never held a hearing on Garland’s nomination, keeping the seat open until Trump filled it with Neil Gorsuch. 

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