It wasn’t supposed to be this way.
In 2013, the Senate adopted two of the most significant changes to its rules in nearly 40 years. The first significantly reduced the amount of time senators in the minority can delay a confirmation vote before it can move forward. The second effectively reduced the amount of votes required to confirm nearly all presidential nominees from 60 to 51 votes. Senators in the minority now have fewer opportunities to frustrate Senate confirmations than at any point in the Senate’s recent history.
At yet judicial confirmations remain at a standstill. Just one judge has been confirmed so far in 2014, and this judge was a holdover from the November 2013 fight that led to Democrats invoking the so-called “nuclear option.” Majority Leader Harry Reid (D-NV) began the process necessary to confirm four judges on Wednesday night, but this process will still take days to complete and will only confirm a small fraction of the 32 judicial nominees awaiting votes. Even after the transformative changes last year brought to the Senate’s rules, the Senate still isn’t working. Routine confirmations are not moving forward.
Franz Kafka’s Senate
The key to understanding why is to first understand how the Senate’s rules create roadblocks to progress even without requiring a supermajority to get anything done. Although Senate Democrats reduced the number of votes required to confirm a judge last November, they didn’t actually eliminate the filibuster. Absent unanimous consent from every single senator, confirming a judicial nominee still requires two votes. First, a majority of the Senate must vote to invoke “cloture” on the nominee — that’s the process that used to require 60 votes but now only requires 51. After this cloture vote succeeds, a fairly small number of senators can force hours of delay before an actual confirmation vote can be held. For relatively low-ranking trial judges, there’s only two hours of delay between cloture and a final vote. But for the more powerful court of appeals judges, up to 30 hours of time can be wasted before the final confirmation vote takes place. (Moreover, the rule that reduces the confirmation time for trial judges sunsets in January — meaning that even the lowest ranking judges could also require 30 hours to confirm next year).
And that’s just two of the hoops Senate Democrats have to jump through in order to confirm a judge. Before a cloture vote can take place, sixteen senators need to sign a “cloture petition,” present that petition on the floor, and then wait more than a day for the petition to “ripen.” If the Senate is currently debating a piece of legislation, it is not allowed to shift gears to focus on a nomination unless it agrees to shift into something known as “executive session.” And, as an aide to Majority Leader Harry Reid (D-NV) tells ThinkProgress, Republicans started insisting that the full Senate hold a vote every time it switches in and out of executive session.
The punchline is that if the Senate wants to take a break from, say, debating whether to raise the debt ceiling in order to confirm a judge, it must hold at least four votes: 1) A vote to shift into executive session; 2) a voter to invoke “cloture” on the nominee; 3) a vote to actually confirm the nominee; and 4) a vote to shift out of executive session. Meanwhile, many of these votes are punctuated by hours or even days of waiting for petitions to “ripen” or for time to tick down between cloture and a final vote.
If Reid were determined to confirm judges at the expense of all other priorities, this byzantine procedure would not be enough to stop him. But he would do so at the expense of his colleagues’ ability to perform many of the basic functions of their jobs.
Most senators actually spend very little time on the Senate floor, where confirmation votes and similar business takes place. The rest of their time is spent speaking with colleagues and sitting on committees. It’s spent meeting with constituents and being briefed on policy by staffers. It’s spent in caucus meetings and in closed-door meetings with their allies. And, because senators are elected officials, much of it is also spent fundraising or talking to their campaign staff.
Each of these tasks is essential to a senator’s job. A lawmaker who is poorly informed will represent their constituents poorly. A lawmaker who neglects important relationships will find themselves impotent. A lawmaker who ignores their constituents or who pays too little attention to their reelection campaign probably won’t remain a senator much longer.
For these reasons, every floor vote is a disruptive event. When Reid calls a vote on a bill, or a nomination, or even a motion reconsider whether to proceed to debate, he is telling 99 of the most over-scheduled people in Washington that they need to drop what they are doing and present themselves on the Senate floor. It would be as if your boss ordered everyone in your office to drop what they are doing and report to a central conference room at barely predictable intervals, and then to try to schedule the rest of their days around these disruptions.
A majority leader who doesn’t manage this process in a way that allows his or her colleagues to attend to the rest of their job responsibilities probably won’t remain majority leader much longer.
The bottom line is, as George Washington University’s Sarah Binder put it in an email to ThinkProgress, “it’s not that Democrats CAN’T get these nominees confirmed,” but rather that it “seems costly in floor/senators time to do so.” In order to confirm a judge, Reid must halt all other Senate business for up to 30 hours just to proceed from cloture to confirmation. And he has to do so in a way that still makes it possible for the rest of the senators to do their jobs.
The Senate, in other words, is profoundly broken in a way that could not be solved by one simple rules change — or even by the full package of changes enacted throughout 2013. Much of the Senate’s rules are premised on the notion that literally every single member of the Senate will agree to allow basic tasks to be performed. In the era of Ted Cruz and Mitch McConnell, that is no longer a viable assumption.