Senators mostly agree the process for confirming a president’s nominees is broken. They also know it could easily get worse.
This week’s “nuclear” rules change by Senate Republicans — allowing most of President Donald Trump’s nominees to be confirmed in groups — is only the latest hammer lawmakers have taken to the once collegial nominations process.
The rancor could be turned up even higher, however, in a scenario the Senate hasn’t faced since it first changed the confirmation rules along party lines more than a decade ago: a newly elected president facing a majority of a different party.
Split government colliding with the first year of a president’s tenure has been rare in recent history. It hasn’t happened since 2001, when George W. Bush faced an ultra-tight Senate margin that flipped the majority back and forth between parties. And in the two decades since, the nominations process in the Senate has grown consistently more partisan, with more hurdles and longer wait times for confirmations.
The Senate saw a hint of how the chamber’s recent nominations warfare could play out in such a scenario in 2015 and 2016, when Republicans held the majority during the final two years of former President Barack Obama’s term. His second attorney general nominee, Loretta Lynch, waited five months to be confirmed. And that standoff was only a precursor for a cataclysmic battle that still hangs over the chamber today: then-Majority Leader Mitch McConnell’s decision to hold a Supreme Court seat open for more than a year.
But the stakes would be exponentially higher after a presidential election where every Cabinet position, not to mention hundreds of lower and mid-level executive branch nominees, plus any judicial vacancies, would need to be filled.
Sen. Kevin Cramer (R-N.D.) put McConnell’s move after Justice Antonin Scalia’s 2016 death in a category of its own, arguing that it was the pinnacle of the Senate’s recent confirmation fights. But he acknowledged a new president would need to “work with” an opposing majority if he or she wanted nominees confirmed.
Presidents, he said, would need to be “thoughtful” about nominees who are “confirmable.”
Yet bipartisan support for nominees has waned over the years, which has been reflected in the rising number of nominees who have had to overcome once rare procedural hurdles.
During the first 200 days of his second administration, Trump’s nominees faced the longest delay in recent administrations between nomination and confirmation, according to data from the Partnership for Public Service. And Democrats have forced nearly twice as many nominees to overcome procedural hurdles before a final vote compared to what Joe Biden faced from Senate Republicans by this same point.
Max Stier — president and CEO of the partnership, which runs an initiative focused on presidential transitions — said that Senate majorities have always had the ability to block nominations. But with the current rules change, he added, “the system that envisioned separation of powers is now seeing separation by party.”
“This is a significant ramping-up of that phenomenon,” he said. “The question is, are we watching our government being fully eaten up by the competition between teams?”
Gridlock from the minority party is what then-Majority Leader Harry Reid cited when Democrats first deployed the “nuclear option” in 2013 to lower the confirmation threshold for executive branch nominees and most judicial picks from 60 to 51. Republicans under McConnell took the same step in 2017 for Supreme Court picks and then sped up the debate time for most other nominees two years later.
“I don’t think the Democrats have ever voted for a Trump judicial [nominee] and I don’t want our side to become like that,” said Sen. John Kennedy (R-La.), predicting that “some Republicans, maybe not a majority,” would vote for a Democratic president’s nominees in the split scenario.
Some senators have recognized the pitfalls of the current partisan gridlock. Last week, a handful of lawmakers launched a last-minute effort to avert a party-line rules change, and those involved in the deal believed they were close to an agreement that would have allowed for the simultaneous confirmation of up to 15 nominees — an idea they believed could get supermajority support.
But they couldn’t get consent from all 100 senators to move forward, and Republicans — not convinced that Democrats would actually cut a deal — pulled the plug and moved forward with the party-line approach which allows for unlimited simultaneous confirmations. That brief glimmer of bipartisanship quickly gave way to recriminations about the calcifying fault lines in the chamber’s nominations fights.
“The nominations process is broken and in desperate need of an overhauling,” said Sen. Jeff Merkley (D-Ore.), who accused Republicans of watering down the Senate’s “advise and consent” role.
Sen. Tim Kaine (D-Va.) added that he worried “to some degree” about the possibility that a Republican Senate would stall Democratic nominees. But he also offered a warning: “I think they ought to be worried about a Dem president and a Dem Senate just putting people together in blocks.”
Democrats openly warned Republicans they were setting a precedent that could be used against them when they are out of power. Senate Minority Leader Chuck Schumer said it “won’t take very long for Republicans to wish they had not pushed the chamber further down this awful road.”
While Republican senators defended their decision to go nuclear — claiming some Democrats privately agreed the Senate was spending too much time processing nominations — they also acknowledged the threat of a larger war looms.
Sen. John Cornyn (R-Texas) said the possibility of interbranch gridlock amounted to “another problem” the Senate would eventually have to deal with.
“Nothing’s easy,” he added.
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