John Adams reminded jurors in his famous summation of the Boston Massacre trials in 1770, “Facts are stubborn things; and whatever may be our wishes, our inclinations, or the dictates of our passions, they cannot alter the state of facts and evidence.” Adams was speaking in defense of eight British soldiers who were accused of killing several people in a Boston riot earlier that year. The future statesman and president had agreed to take the unpopular case on principle, even though doing so jeopardized his career. Adams believed the soldiers were entitled to a fair and impartial trial, and he did not think the evidence against them supported their conviction for murder.
The jury agreed.
With hindsight, it is easy to see why. The colonists pushing for a speedy conviction were caught up in the heat of the moment. They could not see that the facts of the situation undermined their accusations. Had Adams not taken the case, the accused would have likely met a different fate, and the rule of law would have proven to be no rule at all.
Almost 249 years later, Republicans in the Senate appear to be caught up in a similar rush to judgment. The integrity of the Senate’s rules hangs in the balance. They have repeatedly accused their Democratic colleagues of “historic obstruction” in the judicial confirmation process. Technically, Senate minorities are no longer able to block a confirmation vote for a presidential nomination single-handedly, thanks to Democrats triggering 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.” The 2013 nuclear option eliminated the supermajority filibuster for most nominations. Republicans followed suit in 2017, using the maneuver to remove the minority’s ability to filibuster Supreme Court nominees.
Yet despite these changes, senators may still delay the process by dragging out the time permitted by the rules after cloture has been invoked but before a final confirmation vote. Republicans accuse Democrats of abusing this provision by forcing the maximum amount of time to pass before relenting and allowing the Senate to vote up or down on whether to confirm a nominee. The top Republican on the Senate Rules Committee, Sen. Roy Blunt, R-Mo., has characterized the Democrats’ behavior as “outrageous” — “nothing more than obstruction for the sake of obstruction.” Sen. James Lankford, R-Okla., claims that “in the last two years, the confirmation process has been mired in unprecedented political stall tactics.”
On Wednesday, the Rules Committee approved a resolution on a party-line vote authored by Blunt and Lankford that would shorten the amount of debate time senators have after cloture has been invoked on presidential nominations for some executive-branch and judicial positions. Republicans have threatened to make the change in violation of the Senate’s rules, if necessary, if Democrats refuse to support the Blunt-Lankford resolution.
Yet, as Adams would say, “facts are stubborn things.” On closer inspection, the evidence does not support Republican accusations that Democrats’ “historic obstruction” is responsible for delaying the confirmation process. In their rush to judgment, Republicans have failed to see that they are instead to blame for the status quo. Considering what happens after senators invoke cloture illustrates the reasons why.
Rule XXII, the cloture rule, governs how the Senate operates between cloture being invoked on a nominee and a final confirmation vote. First, the rule requires that the nominee in question remains before the Senate “to the exclusion of all other business until disposed of.” Second, the rule states that “no senator shall be entitled to speak in all more than one hour on … the matter pending before the Senate” after cloture has been invoked. Third, the rule limits post-cloture debate time to no more than 30 hours.
Importantly, Rule XXII does not require post-cloture time to always last for the full 30 hours. A confirmation vote may occur earlier if no senator wants to speak who has not already used up their one hour of debate time. Finally, the Senate’s presiding officer must call a confirmation vote on the nominee when a senator is not speaking or seeking recognition to speak.
Reviewing the Senate’s consideration of judicial nominees during the last two years demonstrates that Republicans waived these provisions of the Senate’s rules and practices regularly.
First, Republicans routinely suspended the debate on nominees shortly after the Senate voted to invoke cloture on them. Rather than keep the nominee before the Senate for members to debate as Rule XXII requires, Republicans usually had Senate Majority Leader Mitch McConnell, R-Ky., or his designee, instead, ask unanimous consent that the Senate “proceed to legislative session for a period of morning business with senators permitted to speak therein for up to 10 minutes each.” Republicans effectively pulled a nominee from the floor in this manner on 31 out of the 48 judicial nominees on which a cloture vote was necessary for 2017 and 2018. Of those, Republicans moved to suspend debate on 13 nominees immediately after the Senate voted to invoke cloture on them.
Second, Republicans also made it easier for Democrats to delay the confirmation process by asking unanimous consent that all time during recess, adjournment, morning business, and leader remarks count towards the 30-hour time limit for each nomination. Under Rule XXII, post-cloture time is only required if a senator wants to speak. By agreeing to let this time run when the Senate was not in session, Republicans made it possible for Democrats to delay nominees without talking during the consideration of 42 of the 48 nominees on which a cloture vote was necessary over the past two years.
Third, Republicans often scheduled confirmation votes for judicial nominees by unanimous consent, usually for the following day, but sometimes even several days later. In doing so, Republicans, in effect, made 30 hours the minimum, rather than the maximum, time that must elapse before the Senate can vote to confirm a nominee. Any amount of time short of that now required the consent of all senators. By adopting this procedural posture, Republicans gave Democrats a veto over when the Senate voted during consideration of 43 of the 48 nominees on which a cloture vote was necessary over the last two years.
Finally, Republicans delayed the confirmation process by preventing the presiding officer from calling a vote whenever a member is not speaking. According to the Senate’s rules and practices, the presiding officer must request a vote whenever a senator finishes speaking, and no other senator seeks recognition. Yet surprisingly, Republicans routinely prevented the Senate from doing so when they suggested the absence of a quorum at the end of their speeches. This effectively suspended the Senate’s business until another senator came to the floor to speak. While the Senate is in a quorum call, the presiding officer cannot call a vote on the nominee under consideration. In 2017 and 2018, Republican senators ended their speeches by suggesting the absence of a quorum during the judicial confirmation process on 46 different occasions.
The Senate’s rules will take yet another blow in the weeks ahead with Republicans pressing forward in their quest to speed up a confirmation process that they helped to slow down. Should they succeed in their effort, the Senate’s famed rules will, in the words of Adams, succumb “to the uncertain wishes, imaginations, and wanton tempers of men.”