[Senate Hearing 115-582]
[From the U.S. Government Publishing Office]


                                                        S. Hrg. 115-582

                   A RESOLUTION TO IMPROVE PROCEDURES
                  FOR THE CONSIDERATION OF NOMINATIONS
                             IN THE SENATE

=======================================================================

                                HEARING

                               BEFORE THE

                 COMMITTEE ON RULES AND ADMINISTRATION
                          UNITED STATES SENATE

                     ONE HUNDRED FIFTEENTH CONGRESS

                             FIRST SESSION

                               __________

                           DECEMBER 19, 2017

                               __________

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                 COMMITTEE ON RULES AND ADMINISTRATION

                             FIRST SESSION

                   RICHARD SHELBY, Alabama, Chairman

MITCH McCONNELL, Kentucky            AMY KLOBUCHAR, Minnesota
THAD COCHRAN, Mississippi            DIANNE FEINSTEIN, California
LAMAR ALEXANDER, Tennessee           CHARLES E. SCHUMER, New York
PAT ROBERTS, Kansas                  RICHARD J. DURBIN, Illinois
ROY BLUNT, Missouri                  TOM UDALL, New Mexico
TED CRUZ, Texas                      MARK R. WARNER, Virginia
SHELLEY MOORE CAPITO, West Virginia  PATRICK J. LEAHY, Vermont
ROGER WICKER, Mississippi            ANGUS S. KING, JR., Maine
DEB FISCHER, Nebraska                CATHERINE CORTEZ MASTO, Nevada

          Shannon Hutcherson Hines, Republican Staff Director
              Elizabeth Peluso, Democratic Staff Director
                         
                         
                         
                         C  O  N  T  E  N  T  S

                              ----------                              
                                                                  Pages

                         Opening Statement of:

Hon. Richard Shelby, Chairman, a U.S. Senator from the State of 
  Alabama........................................................     1
Hon. Amy Klobuchar, a U.S. Senator from the State of Minnesota...     2
Hon. James Lankford, a U.S. Senator from the State of Oklahoma...     5

                        Prepared Statements of:

Hon. James Lankford, a U.S. Senator from the State of Oklahoma...    26
Hon. Senator Leahy, a U.S. Senator from the State of Vermont.....    29

                  Materials Submitted for the Record:

Press release from Hon. Mitch McConnell, a U.S. Senator from the 
  State of Kentucky..............................................    31

 
                   A RESOLUTION TO IMPROVE PROCEDURES
           FOR THE CONSIDERATION OF NOMINATIONS IN THE SENATE

                              ----------                              


                       TUESDAY, DECEMBER 19, 2017

                      United States Senate,
             Committee on Rules and Administration,
                                                    Washington, DC.
    The committee met, pursuant to notice, at 2:29 p.m., in 
Room SR-301, Russell Senate Office Building, Hon. Richard C. 
Shelby, Chairman of the committee, presiding.
    Present: Senators Shelby, Alexander, Blunt, Capito, Wicker, 
Fischer, Klobuchar, Udall, Leahy, King, and Cortez Masto.
    Also Present: Senator Merkley.

OPENING STATEMENT OF HONORABLE RICHARD SHELBY, CHAIRMAN, A U.S. 
               SENATOR FROM THE STATE OF ALABAMA

    Chairman Shelby. The hearing will come to order. Today the 
Committee on Rules and Administration will receive testimony on 
Senate Resolution 355, Improving Procedures for Consideration 
of Nominations in the U.S. Senate.
    I want to thank Senator Lankford, who is here with us at 
the table, for agreeing to appear before us today to discuss 
the merits of his resolution.
    In 2010, this committee undertook a comprehensive 
examination of the filibuster in the United States Senate. That 
examination was conducted in response to an ongoing debate 
about invoking the nuclear option. While no action was taken 
immediately following the conclusion of the committee's work, 
the Senate did take steps in early 2013 to modify some of the 
rules and procedures for considering bills, conference reports, 
and certain nominations during that Congress.
    Later that same year, the Senate took a more drastic step 
and invoked the nuclear option for certain nominations. 
Invoking the nuclear option effected a permanent change, as my 
colleagues well know, but the other changes which improved the 
efficiency of the Senate's operations were temporary and 
expired at the end of the 113th Congress.
    Today we will revisit one aspect of those temporary 
changes: limiting the post-cloture debate time for certain 
nominations and consider whether to restore it permanently, as 
provided for in Senator Lankford's resolution.
    Like the change enacted in 2013, this resolution proposes 
to reduce the current 30-hour window for post-cloture 
consideration of certain nominations to 8 or 2 hours, depending 
on the type of nominee. The Lankford resolution also preserves 
the full amount of post-cloture debate time on nominations to 
the highest levels of the executive branch, the circuit courts, 
and the supreme court, just like its predecessor.
    In short, this resolution is designed to return the Senate 
to a time when it effectively and efficiently fulfilled its 
constitutional duty to confirm appointments that are necessary 
to the day-to-day functioning of our Government.
    The post-cloture debate time provided by this resolution 
will once again allow the Senate to deliberate, to debate, and 
to vote on nominees in a timely way. As was evidenced in the 
113th Congress, this change does not inhibit members from 
debating or deliberating on the qualifications of nominees. It 
merely shortens what is currently an unreasonably long process.
    Admittedly, I did not support this change in the 113th 
Congress. I was concerned then that once the Senate altered the 
rules, there would be no turning back. I worried that the 
changes proposed at the time would limit each Senator's voice 
and power, traits that I believe we have always tried to 
protect in this great deliberative institution. But I witnessed 
something different. Nominees, whether I supported or opposed 
them, were debated and voted on in a timely, practical manner.
    More importantly, the Senate no longer wasted countless 
hours waiting, not to hear from colleagues about the virtues or 
vices of certain nominees, not to debate their attributes or 
deficiencies, not to discuss whether they were fit or unfit for 
the job, just waiting for 30 hours of post-cloture debate time 
to expire.
    In 2013, the Senate was able to swiftly carry out its 
constitutional duties, and we witnessed a timely filling of 
judicial and executive branch vacancies. Reducing the post-
cloture debate time in 2013 allowed the Senate to stop waiting 
and start acting.
    That is exactly what I believe we need today. The American 
people are frustrated with Washington gridlock. They believe 
that we cannot get even the simplest of things done. We need to 
fix this. We need to restore the process to what it once was, 
and I believe this is an opportunity to do this.
    I look forward to the testimony today and the debate that 
follows in support of this resolution.
    Senator Klobuchar.

 OPENING STATEMENT OF HONORABLE AMY KLOBUCHAR, A UNITED STATES 
              SENATOR FROM THE STATE OF MINNESOTA

    Senator Klobuchar. Thank you very much, Mr. Chairman, and 
thank you to all the members that are here. Thank you to 
Senator Lankford for appearing before us, and I want to thank 
him for his heartfelt desire to make the Senate work better, 
and also two of my colleagues that are here, and that is 
Senator Udall, who is a member of this committee and has long 
worked on this issue, as well as Senator Merkley, who is a 
visiting member today, and thank him for his work. The three of 
us, along with a few other people, Senator Shaheen and others, 
have worked on this issue the last time that we saw some 
changes. In fact, when I first got to the Senate, our first 
bill that we introduced, our new class back in 2006, was 
devoted to something related to this, which was ethics reform, 
which made some significant changes to lobbying rules as well 
as gift rules and other things. Then we went on to support in 
2010 an end to the secret holds, and, obviously, this committee 
and members of this committee are now looking at changes to the 
sexual harassment policies that are in place in the Senate, and 
just recently with the Chairman's help passed a law--a rule 
change that requires mandatory sexual harassment training.
    There has been work year after year on these issues, and I 
thank Senator Lankford for bringing this to our attention. As 
you will see from my remarks, I just feel that this is not the 
right moment to make these changes to the rule, and I will 
explain.
    Many people refer to the Senate as ``the world's greatest 
deliberative body'' because the Senate is an institution which 
is designed for the careful consideration and debate of 
proposed laws and nominations. How we deliberate, as I 
mentioned, is governed by Senate rules, and only once in the 
history of the cloture process has the Senate voted to 
permanently reduce the time we have to debate an issue. That 
happened back--I am looking at Senator Alexander, who is an 
expert on this. That happened back in 1986 when we went from 
100 hours of post-cloture debate time to the current rule of 30 
hours. The resolution we are considering today asks us to make 
a second permanent change.
    As Senator Lankford notes in his written testimony, 
following years of failing to get nominees confirmed, the 
Senate voted 78-16 to temporarily change the rules on post-
cloture debate time in 2013. But it is important to note that 
back in 2013, the circumstances were very different than they 
are today. Nominations required a 60-vote threshold back then. 
The blue slip process for judicial nominees was respected, and 
a thorough process to select qualified judicial nominees was in 
place.
    Despite all of this, important Federal positions remained 
unfilled even though qualified nominees were waiting to be 
confirmed. To address this issue back then, a bipartisan super-
majority of the Senate supported a temporary change to the 
rules. Where are we today?
    Well, first, the reality is that nominees are getting 
confirmed. On Thursday, just this last Thursday, Leader 
McConnell highlighted the fact that, and I quote, ``Senate 
Republicans are closing in on the record for the most circuit 
court appointments in a President's first year in office.'' Mr. 
Chairman, without objection, I ask that the press release 
provided by Senator McConnell's office on December 14th of 2017 
be entered into the hearing record.
    Chairman Shelby. Without objection.
    [The press release was submitted for the record.]
    Senator Klobuchar. Thank you. The title reads, ``Judicial 
Appointments Are The Sleeper Story That Matters. Circuit 
Courts: `A Dozen Trump Appointees . . . In His First Year In 
The White House.' ''
    President Trump has, in fact, successfully appointed 12 
circuit court judges, more than any other President in the 
first year of office since the Federal appellate courts were 
established 126 years ago. In addition to my service on this 
committee, I also serve on the Judiciary Committee, which I 
have seen firsthand the process and pace at which these 
nominees are being processed. President Trump will have 19 
judges confirmed in the first year of his Presidency compared 
to just 13 for President Obama in the same time period. In the 
Judiciary Committee, we have reported 44 judicial nominees to 
the Senate floor already this year. But in President Obama's 
first year in office, we reported only 23 nominees out of 
committee. The committee also reported just 32 nominees in the 
first year of President Bush's term and 28 in the first year of 
President Clinton's compared to the 44 we have seen this year.
    It is also instructive to look at the end of President 
Obama's term when just 22 judicial nominees were confirmed in 
his last 2 years in office. That is the fewest in a Congress 
since Harry Truman was President.
    When you look at the facts, it is clear that, as my 
Republican colleagues have acknowledged, the current Congress 
is on track for a record-breaking year of advancing judicial 
nominees, and it is unnecessary at this moment to change the 
rules of the Senate. As I have told Senator Lankford, this is 
something we could consider perhaps before a new president 
comes into office. But now, when nominees are moving through 
the process, with many in a purely partisan manner, this change 
would only add to the partisan atmosphere.
    The danger involved in reducing the debate time to expedite 
the confirmation of nominees that we are considering was also 
highlighted by Louisiana Republican Senator Kennedy last week 
during a Judiciary Committee hearing. I was at that hearing. 
Many people have seen the video of Senator Kennedy asking 
Matthew Petersen, a nominee to be a district court judge, basic 
legal questions. Petersen was unable to answer any of them. 
Yesterday Mr. Petersen withdrew his nomination. Last week, the 
administration also withdrew the nominations of Jeff Mateer and 
Brett Talley at Chairman Grassley's urging. They are just 3 of 
the 18 nominees that have been withdrawn this year, and those 
nominees were withdrawn after the committee process.
    These nominees and others demonstrate the importance of 
careful consideration of nominees for executive branch 
positions and lifetime appointments to the bench. I will also 
note that the American Bar Association has now rated 4 of the 
56 judicial nominees put forward by the Trump administration as 
``Not Qualified,'' including 2 who received that rating 
unanimously. That is fairly unprecedented given the fact that 
before this year, the ABA had only issued that rating twice 
since 1989, and we have seen two more of these ratings this 
year already.
    The American people deserve qualified judges who will 
interpret the law fairly, and the best way to get judges who 
are fair and impartial is to have a solid evaluation and 
confirmation process on where the executive branch is 
collaborating with the Senate and we have ample time to review 
and debate these nominees.
    At a time when we have seen unprecedented challenges to the 
judiciary and to the rule of law, we need appropriate checks to 
ensure the selection of qualified nominees to both the 
executive and judicial branch now more than ever.
    Before we turn to Senator Lankford, I would like to note 
that I am glad we are having a hearing in this committee. I 
hope we will have more, Mr. Chairman, next year. I also 
appreciate Senator Lankford's work with me on the state 
election infrastructure issue, something that has exciting 
developments there and it would be a great topic for a hearing. 
I just thought I would put in that plug.
    With that, thank you very much, Mr. Chairman.
    Chairman Shelby. Senator Lankford, your written testimony 
will be made part of the hearing record, as you know. You 
proceed as you wish.

STATEMENT OF HONORABLE JAMES LANKFORD, A UNITED STATES SENATOR 
                   FROM THE STATE OF OKLAHOMA

    Senator Lankford. Thank you, Mr. Chairman and Ranking 
Member, friends and colleagues. I anticipate this to be 
dialogue. I do not think a single one of us thinks that things 
are going swimmingly. We are not engaging on the issues.
    We do consume a tremendous amount of time, not in 30 hours 
of debate but in 30 hours of silence on the Senate floor, with 
occasionally someone to step up and speak on something 
unrelated to the 30 hours of debate on the floor for that 
nominee.
    This is not so much a debate about if only we had 30 hours 
of debate, we would get so many facts out on so many 
individuals, because we are really not debating individuals. 
The work is done in the committees. The work is done in the 
back-and-forth with the administration. That is where it really 
occurs.
    The challenge is we have learned as a body that we are now 
either going to do nominees or we are going to do legislation, 
but we cannot do both, because if the calendar is full for a 
week on three nominations, you will never get to any 
legislation. We continue to have our constituents come to us 
and say, ``When is the Senate going to vote on things?'' We can 
respond, ``We are,'' on nominations. But we do not have time 
for nominations and legislation.
    This continues to accelerate. The issue that we are going 
to continue to face is the gridlock on Capitol Hill is 
spreading across the rest of Washington, and the more that you 
have nominees that are not confirmed in every agency, all of us 
and our constituent services folks and all of our legislative 
staff will tell us they are calling over to agencies and the 
agencies are saying, ``We cannot give you an answer. There is 
not a Senate-confirmed person there.''
    As that spreads, it affects all of our constituent 
services; it affects every permit that we request; it affects 
every bit of the process that happens. The gridlock that is 
here is moving over there. That does not help us long term.
    I tried to be able to give just some basic examples of this 
and some history of it as we deal with the post-cloture debate 
just on nominations. Starting in 1949, from 1949 to 1992, there 
were 12 cloture votes for nominations during that entire time 
period. Then starting in 1993, the Senate averaged around six 
cloture votes for nominations through 2004. In the 109th 
session, the average jumped to nine cloture votes for 
nominations for a year. Then from 2009 to 2012, it jumped again 
to 13 in a year.
    In 2013, the beginning of President Obama's second term, 
the Senate determined that something had to be done about 
nominations. In January 2013, the Senate passed S. Res. 15 by a 
vote of 78-16, standing order just for that one session to 
reduce post-cloture debate time for most executive branch 
nominees from 30 hours to 8 hours and reduced that to 2 hours 
for district court nominees. Under the standing order, the 
post-cloture debate for the Supreme Court Justice and Cabinet-
level nominations all stayed at 30 hours.
    The standing order in 2013 was an attempt to avoid the 
nuclear option. As we know now well from history, that did not 
occur. The nuclear option was still invoked in November of that 
same year. That original, that standing order, though, remained 
and it functioned through the rest of 2014. We saw the 
operation of it.
    Now, in 2013, the Senate considered it intolerable that the 
Senate would have 13 to 15 cloture votes in a year on 
nominations. This year, we have had 63 cloture votes on 
nominations. That is not comparable to where we were. It is an 
acceleration.
    I would say to this body we all know the direction of this 
body. We have 63 cloture votes on nominations now for this 
President. When the Presidential party changes, there will be a 
future Democratic President; Republicans will say they did 63 
to us, we will do 120 to them. Then the next time it will be we 
will do 240 to them, as we have watched this over the last 20 
years slowly go up year by year. I do not know how that turns 
around until this body determines that is going to turn around. 
Enough is enough.
    The rules of the Senate are not something that we can just 
complain about and do nothing about. The Senators control the 
rules of the Senate, and at some point we have to determine 
this is getting out of hand. We have to be able to solve it.
    Now, I was not here in 2013 when the nuclear option was 
invoked, but I have heard the stories of the frustration that 
was rising. My Democratic colleagues believe that Republicans 
were pushing it too far, and so they determined something has 
to be done to get this set. I would just say I have the sense 
that we are in a very similar position, that this can be pushed 
too far, and at some point Republicans respond, ``Something has 
to be done.'' For the sake of the future, not just this 
administration but for the sake of the future, we have to 
determine how we are going to do this and to be able to put 
this in place in a way that actually works.
    Senator Merkley is my next-door neighbor. I was probably in 
the Senate 3 weeks, and he reached out to me and said, ``Can we 
sit and talk about rules? I have heard you mention some things 
about rules.'' I sat in his office. We shared a commonality on 
a lot of these issues in the sense that we have to be able to 
find a way to actually resolve these issues, not just talk 
about them but figure out how it is going to work long term.
    Senator Merkley had a proposal to take all nominations to 2 
hours, period, except for Supreme Court nominations, to be able 
to advance those still to 30. There is not a lot of debate that 
happens on the floor anymore. Most of it happens in committee. 
Now with 51 votes for all nominees, the outcome is most often 
certain. It is really determined before we ever get there. The 
issue is: Are we going to do legislation and nominations or are 
we only going to do nominations?
    As I mentioned in my written testimony, the Roosevelt term 
for the first 100 days, that can never be a marker again, 
because from here on out every president in their first 100 
days will not even get their Cabinet in place. They will not be 
able to move legislation because they will not be able to get 
personnel, because it will be tit for tat from here on out.
    Losing that time period is a great loss to the American 
people, and it is unexplainable to those of us in the Senate. 
My proposal is simple. Let us take the rule that was done 
during that time period, in 2013, with wide bipartisan support 
and let us make it permanent and say this is how we are going 
to continue to function from here on out.
    I would very much appreciate the conversation on it. If 
there is a better idea to do it, I am willing to be able to 
take it on and to be able to say what can we do to be able to 
fix this. But the best idea that I had was to take one that was 
already done and was already agreed on and say let us make it 
permanent and go from here on out.
    With that, Mr. Chairman, I would be glad to entertain 
questions.
    [The prepared statement of Senator Lankford was submitted 
for the record.]
    Chairman Shelby. Thank you.
    Senator Lankford, the Senate has confirmed approximately 
260, it is my understanding, of the President's civilian 
executive branch nominees. On average, it has taken the Senate 
71 days to confirm these officials. You have probably got 
better data than I have. How do these figures compare with what 
the Senate has done in past administrations? You alluded to 
that already.
    Senator Lankford. It is the same advance you would 
consider. It took about 50 days during the Obama 
administration, and it took about 30 or 40 days during the Bush 
administration time and during the Clinton administration. We 
are watching that slowly inch up as well.
    Chairman Shelby. You have also alluded to the impact on the 
executive branch, whether it is a Democrat or Republican. Do 
you know which departments have been hit the hardest by the 
current confirmation slowdown? What are some of the real-world 
implications of these vacancies? How would your proposal 
alleviate some of the staffing----
    Senator Lankford. The hardest hit right now would be State 
Department and DOD. The State Department has 20, 22 or so that 
are currently pending and waiting. Of course, they have a very 
large group of those that have to go through the process. DOD 
has about 15, I believe, somewhere in there, that they are 
waiting on.
    The real-world implications are the things that all of us 
have seen from our constituent services. When they get a call--
I can just give you one example. We had wildfires that were 
moving through western Oklahoma and through southern Kansas. We 
had a wildfire literally larger than the State of Rhode Island 
that was burning. Farm Services needed a confirmed individual 
to be able to get some answers back on that. We did not have a 
confirmed individual, so our farmers and ranchers had to wait 
for weeks until there was a confirmed individual to be able to 
actually answer the question to be able to start the process. 
Those farmers and ranchers were literally living off of hay 
that was being donated from other places because they could not 
get disaster relief aid that, with a confirmed individual, 
would have been just immediate. We see that with FERC. There 
are a lot of examples of that.
    Chairman Shelby. Senator, you have alluded to wasting time 
on a lot of it, just letting the clock run but no debate or 
anything. Cloture has become, I understand--and I have been 
here like all of you--a routine part of the confirmation 
process even for nominees that enjoy broad bipartisan support. 
The confirmation of David Nye, some of you might recall, to be 
a district court judge is a glaring example of this. His 
nomination was subject to the cloture process and extended 
post-cloture debate even though he was ultimately confirmed by 
a vote of 100-0.
    What would be the reason to force debate on a nominee that 
enjoys this type of support? In other words, it looks like it 
would be common sense to move these people--either party, you 
know?
    Senator Lankford. The joy of the Senate is the minority can 
always express their displeasure in a multitude of different 
ways, and even for an individual that you demand 30 hours of 
post-cloture debate, then everyone votes on them 100 to nothing 
would be a complete anomaly to the 25-years-ago Senate. That 
was never done. In fact, there were no cloture votes requested, 
and there had been the ability to be able to do that since 
1949. There were none until 1968, and that is one that 
Republicans and Democrats agreed on together to be able to do, 
to be able to stop one of LBJ's Supreme Court nomination 
changes. As he wanted to be able to move someone different into 
leadership, there was an agreement to try to shut that down.
    This was unheard of. Nominations moved by unanimous 
consent. That is how they moved. If there was a major problem, 
then you had a big issue or found a way to be able to resolve 
it. This has now become standard practice. That is why I say 
the rule has been there. The practice, though, has changed. Now 
our rules have to catch up to our practice, or nothing is going 
to ever change on this.
    Chairman Shelby. Senator Lankford, your resolution would 
restore one of the post-cloture process changes in the Senate 
from the 113th Congress. I believe that change struck the 
appropriate balance between preserving time for debate without 
needlessly delaying the inevitable confirmation of nominees.
    In your view, is there any reason the Senate should not 
restore this process change? We call it the ``Reid Rule.''
    Senator Lankford. No. I think we should do it, and it is 
not just for this Congress. I know there will be debate, but it 
will be for the next one and for the next one and for the next 
one. If we do not establish a principle to be able to get out 
there, I can assure you, after the next election, when a 
Democratic President is elected, Democrats will come to 
Republicans and say, ``Okay, now we need to do that rule you 
were talking about and you liked so much. Now is the time to 
vote for it.'' Republicans will say, ``No, not now. Now it is 
the next election. We will do it.''
    At some point, we just have to determine for the future 
this has to be resolved; otherwise, it never gets done.
    Chairman Shelby. Senator Klobuchar.
    Senator Klobuchar. Thank you very much, Mr. Chairman. I 
appreciate that last thought, and I hope that could happen. But 
our issue is right now that we are in this reality, and the 
reality is that the Majority leader has just put out a press 
released talking about all they have got in a record--the 
administration has got a record number of judges through. We 
have had a number of judges withdraw because they were clearly 
unqualified, and we have had a Republican Senator cross-examine 
a judge who was clearly unqualified and whereas you have noted 
at this partisan time. If we were to move forward on this with 
this proposal, which would not meet the 60-vote threshold, I 
believe, because of the fact that it is viewed as partisan as 
opposed to a bipartisan effort that maybe could have been 
worked up in a different way.
    The other thing that I think we have not talked about and I 
did not mention in my opening is that we have invoked cloture 
for 64 nominees, and for 54 of them we used 8 or fewer hours of 
post-cloture debate. I just think that we should realize that 
some of the issue with these positions not being filled, which 
I hope you will acknowledge, Senator Lankford, is that people 
were not being nominated on the executive branch side, 
particularly in places like the State Department; and that when 
you look at the real facts here, for 54 of the 64, it was 8 or 
fewer hours. I wondered if you would respond to that practical 
argument.
    Senator Lankford. Sure, and I would be glad to. Even 54 
would be--that is a larger number of requests even for a 
cloture vote than the last four Congresses combined--not years 
but last four Congresses combined. To even request a cloture 
vote--this was done by unanimous consent--to know this is going 
to move, so why slow down the process and demand additional 
hours for post-cloture. Even that shows the radical change that 
has really occurred in the shift in time. As far as the 
nominees that are three nominees or several that the 
administration has brought up, went through the committee 
process, and then were set aside, that happened even before 
they got to the floor, and I think that will continue to 
happen, and I would assume that would happen regardless of who 
the President is. They are going to put some people up that are 
not going to perform well, that Senators from both parties 
should step back and say our advice and consent is no, and to 
do that in the committee process.
    I do not know of any of those that were addressed once they 
got to the floor. Once they get to the floor, there may be 30 
hours of debate or 8 hours or 2 hours, but most of the time, as 
I can recall--and maybe somebody can correct me--once they got 
to the floor, it was done. Catching them happened in the 
committee process.
    Senator Klobuchar. I just think back to some of the efforts 
that have been made earlier, especially the one I know Senator 
Collins was involved in trying to--and I am not remembering the 
Democrat, but to try to limit the number of people who were 
confirmable by the Senate and made some changes so that it 
would take effect into the next administration regardless of 
who the President was. To me, those efforts were bipartisan, 
and I know you have been talking to our colleagues, but----
    Senator Lankford. I would have no issue with that.
    Senator Klobuchar. Okay. You compare your resolution--the 
last question here--to one passed in 2013, and as we discussed, 
that was temporary, and it was at a time when we had a 60-vote 
threshold. As I see Senator Leahy here, from a Judiciary 
Committee standpoint most significantly, that was at a time 
when the blue slip process still applied for circuit court 
nominees, and that has now been changed for circuit court but 
not for district or U.S. Attorney.
    To me, it seems like there were other protections in place 
at that time, and while I would agree with you that time is not 
our favorite protection--that is why I have worked with 
Senators Merkley and Udall in the past. As you see these 
protections that we have had in the past going away, it makes 
you not want to make these changes right now. That is why I 
would like you to discuss that, acknowledge why we would want 
to move on this now if you are on our side of the aisle.
    Senator Lankford. I would be glad to on that. The only 
portion of the 2013 proposal is the sunset that has experienced 
a change on this at all. I literally took the exact same 
language as 2013, removed the sunset, and said this becomes 
permanent. My request is to make it a standing order, which 
would require 60 votes and make it a permanent standing order 
without any sunset date on it. That is the request, and that is 
why I said let us take the exact language.
    I do understand it has changed from 60 votes to 50 votes. 
That was done in a nontraditional way. I understand the world 
changed, but the world radically changed in November of 2013, 
regardless of what we are doing with this. That protection 
lost--the issue about the 60 votes or 50 votes, I was not here 
at the time in the Senate, but that was one of the long-term 
consequences regardless of what is done. You lose some of those 
protections in the process. The time is there.
    The blue slip issue is, quite frankly, a great conversation 
piece. That is something that Senator Leahy has handled as 
Chairman of the Judiciary, very different than most of his 
colleagues that were Senate Judiciary Chairmen for the last 100 
years. As you look at the last 100 years in the Senate 
Judiciary Committee, most of them did not treat the blue slip 
the same way Senator Leahy did. Senator Kennedy did not. 
Senator Biden did not. Senator Hatch did not. Senator Grassley 
does not. They have handled it in different ways. But that is a 
Senate tradition to be able to establish whether this is 
consent that happens or it is a locked-in requirement that you 
have to be able to get that blue slip back and forth.
    I look forward to the ongoing----
    Senator Klobuchar. You can tell Senator Leahy wants to jump 
in at this moment.
    Senator Lankford. I am eager to be able to have that 
conversation. I would say that he handled that in a way that 
was consistent both with a Republican and a Democrat President, 
to his credit on that, exactly the same way on how the blue 
slip process would be handled, but it was different than other 
predecessors in exactly the way they actually applied it in 
that as a single tradition.
    Chairman Shelby. Senator Blunt.
    Senator Blunt. Thank you, Chairman.
    You know, the elimination, obviously, of the 60-vote 
protection, except for the Supreme Court, was done by a 
Congress controlled by Democrats. The blue slip, I think even 
Senator Hatch--I will be interested to hear what Senator Leahy 
has to say about this. I think Senator Hatch--the blue slip has 
not been at all consistent, but what has been most inconsistent 
was using the debate time as a clear delaying tactic. Nobody is 
opposed to 30 hours of debate time if there was actually 30 
hours of debate. It has already been mentioned the 100-0 vote 
after 30 hours of no discussion at all. I know there was 
earlier a 98-2 vote, and there was 20 minutes of debate about 
the nominee, and it was 20 minutes for the nominee. Certainly 
we could eventually get these people confirmed if we do not do 
anything else. But it is clear that this is being used to slow 
down the other work of the Senate and for no other purpose.
    You said, Senator Lankford, that there have been--let me 
see if I have got this right. I think you said there have been 
63 cloture motions this year. I looked at this in October, and 
if I recall the mid-October number right, there had been 47 
this year. At the same time for President Obama, there had been 
three. For President Bush there had been one. For President 
Clinton there had been one. For President Bush 43 there had 
been zero. The previous four Presidents, there had been five 
cloture motions by that time in October. The 47 this time, is 
the debate more strenuous on these nominees this time, Senator 
Lankford? Have you looked at the debate clock and how much is 
actual debate and how much is just time spent on other things?
    Senator Lankford. With some rare exceptions, obviously, 
with some very heated Cabinet officials, this rule that I am 
proposing would not change those a bit. They would still be 30 
hours for those individuals. For the other individuals, the 
debate clock was rarely used. Sometimes, as you mentioned, as 
short as 20 minutes, and usually those were the two Senators 
from that state that were actually coming to speak well of the 
individual from their state, and then otherwise the C-SPAN 
cameras rolled with riveting silence during that time period. 
That is an issue for us.
    A practical example of that is Judge Scott Palk from my 
state. Judge Palk was one of those that required extended 
cloture time. Scott Palk had been nominated by President Obama 
as a district court judge, was renominated by President Trump 
as a district court judge, still required a cloture vote to be 
able to go through the process and extended debate, and I 
recall only Senator Inhofe and I actually spoke about him on 
the floor when the actual extended debate time was required. 
When he arrived at his desk, he was handed 125 backlog cases 
that hit his desk the same day that he got there. This has 
real-world consequences the more that this slows down the 
process.
    Senator Blunt. Is one of the consequences that we cannot 
get to other work during this 47 or 63 times 30 hours that we 
would use----
    Senator Lankford. When you are post-cloture, you cannot 
bring up other things, as this body knows extremely well. As I 
mentioned before, we can either do nominations or legislation, 
but the Senate cannot walk and chew gum at the same time. We 
can only do one thing at a time. If we have extended debate and 
required post-cloture, if that is going to be the vehicle that 
will do it, that will permanently block any legislation from 
being done because we have to do personnel as well as 
legislation.
    Senator Blunt. The large percentage of this President's 
first-year appointments, while we are not done with this yet, 
if you wanted to do this in a way that only dramatically 
affected the next President, the first year of this Presidency 
is gone.
    Senator Lankford. Right.
    Senator Blunt. The next first year of a Presidency is for 
whoever is the next President. We could spend a lot of time, I 
guess, getting upset with each other about this year, but we 
are about to get to the point where this will no longer have 
eaten up the first year of a Presidency. By most standards, the 
most productive time in a Presidency is the first year. That 
one is gone, and it is gone with 63 times 30 hours of time 
spent on nominations that, with a handful of exceptions, there 
was no debate. We ought to be talking about the first year of 
the next President, no matter who that is, or the next 
Presidency, no matter who that is. This is as good a time as 
any to do that. The first year is gone. The nominations that 
have come up in the last 3 years are not nearly as 
consequential or pressing, and so if you want to talk about 
what we are doing for the next President, what we would decide 
to do right now would have much more impact on the next 
President than this President, who has already lost a year of 
legislative time because of the delay that has been used for 
these nominations. I would like to see us do this for the next 
President, no matter who the next President is.
    Chairman Shelby. Senator King.
    Senator King. Senator Lankford, I appreciate your coming 
today and bringing this proposal forward and treating it as a 
dialogue because it is an important question. I just have a 
couple of questions just to understand the facts.
    My understanding is that this year, when we have had all of 
these cloture motions, very rarely have we used all the time. 
Most nominees have been 10 hours or less. Isn't that the case? 
I think Attorney General Sessions and maybe Mr. Pruitt went 
over 20 hours.
    Senator Lankford. Correct. Most of them have been around 
that time, but it is usually a full legislative day. While it 
may not have been 30 legislative hours, it was a full calendar 
day, and so that was a full day. For instance, a typical week 
on a lot of these, you would do three nominations in a week, 
maybe four or five in a week. But then you do not get to any 
legislation because while you are post-cloture, you cannot 
bring anything else up.
    Senator King. If you are post-cloture, but the 30 hours are 
not necessarily all used. Is there another option here of 
saying you could have 30 hours, but if there is no actual 
debate or discussion after a certain grace period, nobody comes 
to the floor, then you could reduce the time based upon no 
debate.
    Senator Lankford. Sure, you could actually force the issue, 
and for any Majority Leader, they could come to the floor as 
soon as there is silence and call for the vote.
    Senator King. That can be done under the current rule.
    Senator Lankford. That can be done under current rule. That 
actually dials up the volume even more, and I would assume it 
is one of the things the Majority Leader and Minority Leader 
can negotiate at any point, ``I am not going to do that.'' Or, 
``We are going to force people to actually be on the floor to 
be able to do it.'' But that is something the Majority Leader 
and Minority Leader could do. But that forcing mechanism could 
be done under any expression of that.
    By the way, it is time equally divided, so let us say it is 
30 hours, time equally divided; it is really 15 hours for the 
minority party, 15 for the majority. If the majority party 
chooses not to exercise that, a 30-hour debate is really 15 
hours. But that is still, obviously, a full calendar day.
    Senator King. I take it that you would not be receptive 
to--or perhaps you would--returning--you are basically putting 
back into place what the Chairman referred to as the ``Reid 
Rule.''
    Senator Lankford. Right.
    Senator King. At the time that rule was accepted in January 
of 2013, there was a 60-vote requirement. Would you accept 
returning to that 60-vote requirement?
    Senator Lankford. I would not only in the sense that that 
seems to be a genie out of the bottle at this point. Once you 
have crossed that threshold of saying 51 votes makes that 
decision that you can shift back and forth, I do not know how 
you undo that. Even if you undid it for this Congress, there 
would be every incentive in a future Congress just to be able 
to flip it so that would turn on and off.
    Senator King. One other parliamentary question, and you 
mentioned this, that part of your motivation here is to open up 
more time for the Senate to do a variety of things.
    Senator Lankford. Correct.
    Senator King. What about allowing other matters to come 
before the Senate during the post-cloture period if there is no 
debate upon the nominee, a dual track, in effect?
    Senator Lankford. Dual tracking is something that has been 
done by the Senate by unanimous consent before. If you have a 
2, 8, or 30, you would not necessarily need that because you 
could already dual track just based on the calendar, you would 
have post-cloture. You could do, for instance, a district court 
judge in the morning at 2 hours, or you could do one that is--
in the afternoon do one that is 8 hours and do only 4 hours 
used by one side and still do legislation in the morning.
    Senator King. You could do a district court judge within 
the 30 hours for a Cabinet nominee, for example, if the 30 
hours for the Cabinet nominee are not being used.
    Senator Lankford. Right. I would think that would be 
appropriate only in the sense that if it is not being used, go 
ahead and bring it to the vote and get it resolved. For 
Cabinet, there are about 22 individuals that are considered 
Cabinet--or 21 that are considered Cabinet-level individuals, 
Supreme Court, or circuit court. I would think those 
individuals, we would use the majority of that 30 hours of 
time. That is a bigger issue. More people are going to be 
engaged. I have no issue with trying to make sure that those 
get the maximum amount of time. But for the rest, now that it 
is 51 for votes, most of the action on the floor is perfunctory 
or not used at all.
    Senator King. Well, as you noted early in your testimony, 
the Senate traditionally has operated in a way that respects 
the rights of the minority and that it has that in its nature. 
If we have gone from 60 to 51, and if we are shortening the 
time, and if we are drifting away from the blue slip 
requirement, it seems to me we are moving very rapidly toward a 
majority only. You know, one possibility would be to take your 
recommendation and say it will be in rules on January 1st of 
2021. In other words, none of us know who the President is 
going to be, who the majority is going to be, and then we would 
be able to consider it more in the abstract than in the 
present-day political situation.
    Senator Lankford. Quite frankly, there were several budget 
proposals and such that I made, and counterproposals that I 
made a year ago to try to--and this was one of them, to say we 
should do this now before this election. I did not have a lot 
of my Democratic colleagues that wanted to engage at that point 
as well, even when it was unknown who the next person would be. 
I think there is no easy moment to do it. If you set it in 
place at any moment, it will be a challenge because someone on 
either base is going to scream you are giving away your ability 
to enforce leverage.
    What I am trying to do is to be able to get the Senate back 
regardless of who is President, regardless who is in the 
majority or minority, to be able to operate. The nominations 
process, starting with the nuclear option that happened in 
2013, that November, and then again the nuclear option again 
being exercised on the Supreme Court, the nominations process 
has dramatically changed, and the rules have not caught up to 
that operation.
    Senator King. Thank you.
    Thank you, Mr. Chairman.
    Chairman Shelby. Senator Alexander.
    Senator Alexander. Thank you, Mr. Chairman.
    I would like to continue the tone of the dialogue between 
Senator Lankford and Senator King but make this statement: 
After the 1980 elections, Democratic Senator Robert C. Byrd 
suddenly became the Minority Leader, and Republican Howard 
Baker became the Majority Leader. Baker went to Byrd and said, 
``Bob, I will never know the rules as well as you do. I will 
make a deal with you. I will not surprise you if you will not 
surprise me.'' Byrd said, ``Let me think about it.''
    [Laughter.]
    The next day, Byrd said yes and they managed the Senate for 
4 years together. I have heard Senator Leahy say it was one of 
the best, if not the best, functioning of the Senate that he 
has seen.
    That is what we are talking about today, functioning as an 
institution, making the Senate work. We claim the Senate is 
unique, but that is only true if it works. Senator Lankford's 
proposal is modest because it would reinstate a bipartisan 
standing order that we adopted for 2 years. His proposal is 
important because it would reinstate the practice of changing 
our rules according to the rules.
    I hope the committee will unanimously recommend Lankford's 
proposal to the full Senate. I want to say three things about 
it.
    First, it is the same proposal that was adopted 78-16 in 
January of 2013. It is true it took 60 votes then to end debate 
on a nomination, and later that year Democrats used the nuclear 
option so that it only took a majority vote. But that was not 
really a change in practice because throughout the Senate's 
history, Presidential nominees were almost always approved by a 
majority vote. Even when the rules permitted it, cloture was 
never once used to block the nomination of a Cabinet member, 
never once used to block the nomination of a Federal district 
judge. The only time it was used with a Supreme Court Justice 
was 1968 with Justice Fortas, as was mentioned, and never used 
for circuit judges until Democrats blocked nominees of George 
W. Bush in 2003. The point is the custom has always been that 
Presidential nominations are decided by a majority vote. By 
custom and by rule, his proposal is the same as the 2013 
standing order.
    Second, this is an opportunity to reinstate the practice of 
changing the rules of the Senate according to the rules--that 
is, 67 votes to change a rule, 60 to pass a new standing order. 
Each party has demonstrated that we know how to do it the wrong 
way. The problem with that, as Senator Levin once said, is that 
a Senate in which a majority can change the rules anytime it 
wants is a Senate without rules. Continuing to ignore the rules 
will lead to ending the filibuster on legislation and destroy 
the uniqueness of the Senate. In Senator Byrd's last speech 
right here before this committee in 2010, he implored us, 
``Never, ever, ever get rid of the filibuster. It is,'' he 
said, ``the guardian of minority rights and an essential engine 
for consensus.''
    Third, the Senate needs a change in behavior more than a 
change in rules. We changed the rules in 2012 and 2013 to make 
it easier for President Obama and his successors. I spent a lot 
of time on that, as had many others. We eliminated secret 
holds, required 72 hours to review legislation, made 373 
nominations privileged, eliminated confirmation of 163 major 
positions, eliminated the need to confirm 3,163 
noncontroversial positions. We did all that. We adopted several 
measures to speed up the motion to proceed and shorten post-
cloture debate. Still, the nuclear option has been used twice 
since then. I would say that on November 21st, when we used it, 
there were 20 judges and 56 executive nominations pending, only 
4 more than 60 days. Twice as many are pending today, 24 more 
than 60 days. Conditions are worse today than when the 
Democrats said we needed to use the nuclear option.
    The change in behavior we need boils down to one word: 
restraint. Senators Baker and Byrd were successful because 
Senators did not insist on using every right and prerogative. 
Motions to proceed and unanimous consent requests were 
routinely granted. Senators did not block other Senators' 
amendments. They simply voted no. Presidential nominations were 
almost never blocked by requiring a cloture vote.
    Last summer, a Supreme Court Justice was asked how Justices 
are able to get along when they have such different 
philosophies in such controversial issues. I was listening at 
the time. The Justice's reply was, ``Each of us tries to 
remember that the Constitution and the institution are more 
important than our own opinion.''
    Senator Lankford's proposal is an opportunity to 
demonstrate that United States Senators can remember that the 
institution is more important than our own opinions. I hope we 
will unanimously recommend his proposal to the full Senate.
    Thank you.
    Chairman Shelby. Senator Cortez Masto.
    Senator Cortez Masto. Thank you, Mr. Chair. Thank you for 
having this hearing. Senator Lankford, let me say thank you for 
bringing this forward. As a new Member to the Senate, I 
appreciate this discussion and look forward to further 
discussion. I am not sure I am completely behind the language 
that you have but look forward to further discussion on the 
concept.
    Let me just start with that. As a new Member--and you 
talked a little bit about Justice Scott Palk and the fact that 
he had come before the Senate before, so why wasn't it quicker? 
Well, I was not here then, and I think for purposes of new 
Senators, this is all new to us as well. I would not like to 
see a quick process moving through, particularly as an attorney 
who cares about the judiciary and what happens on it. I am not 
on the Judiciary Committee but would like the time to properly 
vet these individuals. I think for purposes of moving forward 
for new Senators, we want to give them that authority as well, 
and just because they are not here to vote previously, that 
would be my concern. I would be curious, your thoughts on how 
we address that.
    Senator Lankford. Sure. There are several things in that. 
One is obviously they get vetted in the committee process. It 
is well known when they go on the calendar, staff has the 
opportunity to be able to pull and say these are potentials 
that are coming up on the executive calendar to be able to do 
the vetting and the process.
    If there is a request--and, again, you go back through 
history on this, 25 years ago it was extremely rare even to 
have one cloture vote on a nominee. Now we have 63, 64 just 
this year. In the past, obviously, this was able to be done. 
You go back, again, 20, 25 years ago, there were even more 
nominees on the calendar. That list has been shortened, 
thankfully, and it needs to be shortened some more. That is an 
opportunity.
    One thing that I had not mentioned earlier as well that is 
part of the challenge of, well, we cannot do it now because we 
are in the middle of a Presidential time. Republicans stepped 
across the aisle in 2013, met with Democrats, and voted with 78 
votes at the beginning of President Obama's term to say we are 
going to change this and to not do extended debate for all of 
this. Let us do 2, 8, and 30. Republicans did cross the aisle 
and say we understand for a brand-new President that is going 
to bring a lot of new nominees--as a second-term President, a 
lot of people leave after the end of the first term, and so 
that is a rush again of nominees. Republicans opened it up and 
said we are going to take heat from our own base, but the 
President should be able to get his nominees, and they worked 
through the process.
    Senator Cortez Masto. No, and I appreciate that, 
absolutely. Are you saying also that--I think one of the 
concerns that I saw coming through as a new member is there 
were a number put up at one time, four or five in a panel, 
rushing those through. That would be another concern. Are you 
saying that process would still occur or----
    Senator Lankford. That would hopefully occur because there 
are 1,200 to do.
    Senator Cortez Masto. Right.
    Senator Lankford. I think there will still be quite a few 
in a panel in a committee, and I still assume that there will 
be quite a few. But any time they move in a bloc, that is a 
unanimous consent agreement that everyone's staff and every 
member has the opportunity to be able to see those individuals 
and say, yes, I can sign off on this. They will move as a bloc.
    Senator Cortez Masto. Right. No, and I appreciate that. For 
people, particularly for me, who may be not on those 
committees, I would want the time to be able to vet, thoroughly 
vet those.
    Senator Lankford. Sure.
    Senator Cortez Masto. For the purposes of the advice and 
consent that I am required to do.
    Senator Lankford. That would not change.
    Senator Cortez Masto. The next question I have, everything 
that we are talking about here today, we are talking about the 
delays particularly here in the Senate. Are you also 
considering the delays in the nominations from this 
administration? I have not heard discussion on that, and let me 
just say I know that traditionally in the past, Presidents have 
had more nominations at this point in time. My understanding--
and this may be wrong, but President Trump has been 
historically slow in submitting nominations to the Senate; 250 
out of 624 positions requiring Senate confirmation are still 
without a nominee. My understanding, that is unique compared to 
other Presidents at this point----
    Senator Lankford. I do not know if it is unique. It is 
unique in the last 20 years, certainly. I have not gone back 
any farther than that. But I would say President Clinton, 
President Bush, President Bush, President Obama all had more 
nominees that the White House had actually put out to Congress 
by this point. By this point, I would guess somewhere around 
150 fewer than President Obama at this point, maybe more than 
that, that President Trump has put out than President Obama. 
But that is still, even those that he has put out, fewer have 
moved as well. It is really a both-and on this. The White House 
owes us a lot more people to be able to put through the 
nomination process, but even if they got here, we are not 
moving them at the pace that they actually need to be moved, 
because typically they move in large blocs rather than one at a 
time, with 8 or 30 hours required for it. In the past, the 
Senate has looked at it and said as long as this person is 
competent to do the task--they may not philosophically agree 
with them, but they philosophically agree with the President, 
the President can pick his own staff.
    Senator Cortez Masto. Thank you. I know my time is running 
out. The only other concern I would have is the vetting. My 
understanding and concern is that this particular 
administration has not engaged in proper vetting of some of 
these nominees, and so we want to take the time to make sure 
that vetting occurs. But let me just say this: I look forward 
to continuing the conversation on this along with the remarks 
of my colleagues on this subject as well. Thank you for 
bringing this forward.
    Senator Lankford. Sure. Advice and consent is our 
constitutional responsibility, Senator.
    Chairman Shelby. Senator Udall.
    Senator Udall. Chairman Shelby, thank you so much for this 
hearing, and I would like to continue on the same tone, Senator 
Lankford, and very much appreciate your sincere interest in 
wanting to make the Senate work better, I hope for both sides, 
the majority and the minority.
    Senator Lankford. Right.
    Senator Udall. Reforming the Senate rules is something I 
have been talking about and working on since I joined the body 
in 2009. Senators Harkin, Merkley, and I, along with other 
members, have been introducing resolutions and having good 
bipartisan discussions for many years.
    In January 2011, we introduced a rules reform package. One 
provision in that package would have reduced the post-cloture 
time on nominations from 30 hours to 2 hours, with Supreme 
Court nominees being the only exception. Today's hearing 
indicates that my Republican colleagues have finally agreed 
with this position----
    Senator Lankford. If you are asking for a motion to take 
your amendment, I would second it.
    Senator Udall. Now that--I am not. I am not. But now that 
the President is a Republican and they are in the majority. But 
we proposed a package of reforms that benefited both the 
majority and the minority. Today's proposal benefits only the 
majority, and the majority is looking to rush it through 
without expert testimony or bipartisan negotiation.
    There are other key differences between then and now. When 
we made our proposal to reduce post-cloture time to 2 hours--
and these have been mentioned several times; you have heard 
them--you still needed 60 votes to invoke cloture, which was a 
real restraint on everybody. Blue slips were still honored for 
all judicial nominees. The minority still had a voice in the 
confirmation process. That is the important part, and I think 
Senator Alexander talked about that in terms of restraint.
    That is no longer the case. A simple majority can ram 
through even the most unqualified nominees. Today's hearing is 
about how to do it even faster. President Trump will be the 
first President in history who is able to confirm all of his 
nominees with a simple majority, and his party controls the 
Senate. It is pretty shocking that the majority is complaining 
about obstruction.
    Let us be clear. One of the biggest problems with this 
administration's nominees is that they have proven through the 
Senate's normal vetting process to be unqualified, even to the 
majority. There is a huge difference between conservative and 
unqualified. We expect a Republican President to appoint 
conservative nominees, but we do not expect unqualified 
nominees, and none of us should tolerate it. President Trump is 
sending the Senate judicial nominees who are rated 
``Unqualified'' by the American Bar Association, nominees who 
cannot answer basic questions about the law, nominees to be 
trial judges who have never tried a case, nominees with serious 
conflicts of interest, nominees with no substantive experience 
in the position that they are being appointed to.
    In the campaign, President Trump said, and I quote--and 
this was something I was really looking forward to--``I am 
going to surround''--this is his quote: ``I am going to 
surround myself with only the best and most serious people. We 
want top-of-the-line professionals.'' This is yet another 
statement by the President that has been proven false.
    My colleagues on the other side of the aisle seem willing 
to abdicate our advice and consent responsibilities and just 
act as a rubber stamp.
    Senator Lankford, your proposal should be considered, but 
only if additional reforms are included as part of a good-
faith, bipartisan negotiation to include the minority's voice 
in the confirmation process. For years, Senator Merkley and I 
have advocated for what we call the ``talking filibuster.'' It 
would allow the minority to filibuster nominees and 
legislation, but only with a significant effort and willingness 
to hold the floor and continue debate. I think that is what you 
talked about. You wanted to see that vacant time be used or, if 
it was not being used, used on something else. If we are going 
to look at reforms, it should not be in a hastily scheduled 
hearing with only Senator Lankford as a witness during the last 
week of the session and when other major legislation is being 
considered.
    I do appreciate that the markup was postponed. I hope it is 
not rescheduled until we have had additional hearings, good-
faith negotiations with the minority, and the ability to 
consider a variety of reforms from other Senators as well. 
Since the Republicans took over, the Rules Committee has been 
essentially dormant. In nearly 3 years, they have had only one 
substantive hearing until today, and that was a confirmation 
hearing for the Library of Congress. When Leader Schumer 
chaired this committee, he took reform seriously. In 2010, we 
had six hearings on examining the filibuster. Over the course 
of 5 months, we heard testimony from over 26 members; 18 
members entered statements in the hearing record. We heard from 
legal experts and former parliamentarians. Senator Byrd 
provided his insights, as has been talked about here. We used 
what we learned from those hearings to draft our reform package 
in January 2010 and 2011.
    If the majority is serious about rules reform, we need 
bipartisan support. To get that support, they will need to do 
it the right way. Let us hold hearings next year and develop a 
package of reforms we can all live with, whether we are in the 
majority or the minority. That was always our test when we 
crafted our legislation. The resolution we are considering 
today fails to meet that test. Rather than changing the rules 
in the middle of a Congress, we should debate and vote on a 
reform package at the start of the 116th Congress, regardless 
of which party is in the majority.
    Senator Lankford, just one question here to you. Do you 
support additional hearings and good-faith, bipartisan 
negotiations to develop a reform proposal that can gain the 
necessary bipartisan support to actually pass the Senate? I 
would be happy to hear any additional thoughts you have in 
response.
    Senator Lankford. Sure. With the Chairman's indulgence on 
this, I would have no issue obviously with additional hearings 
and conversations. When the Senate is actually meeting in a 
setting like this, when we are really talking about how do we 
solve things, we are at our best. We are at our worst when we 
say we are going to go talk on the floor, and no one is 
listening other than the C-SPAN audience, and we are not 
talking to each other. There are opportunities to be able to 
sit down to be able to work it out. We should certainly do 
that.
    This was no trick play on my part. I am a new guy that has 
been here 3 years. My focus was I can see obviously what 
everyone else can see. It is not working, and it has not been. 
What can be done to actually get us back to where we can have 
debate again. If all of our dialogue on the floor is simply 
about 30 hours of debate on a judicial nomination that is going 
to pass 89-11, then that is not really accomplishing the task 
that we need to do to be able to fill out that full legislative 
day.
    I remind this body that we had unlimited debate, and then 
it was limited to 100 hours later, and then it was limited to 
30 hours. The funny part to me is: Why? In 1986, they limited 
it from 100 hours to 30 hours because that is when the C-SPAN 
cameras turned on, and the Senators determined they did not 
want the C-SPAN cameras focused in on an empty chamber of 100 
hours of post-cloture debate with no one actually on the floor. 
They changed it to 30 hours because that is the maximum amount 
that had ever been used for post-cloture debate. Even though 
the rule was 100, they dropped it to 30 thinking we will give 
the maximum amount that it is. Now we do 30 hours of debate and 
rarely any of it is used.
    We still are in the same situation. If we are going to get 
back to actually operating, I would suggest that we actually 
get back to operating and put our rules where our practice is.
    Senator Udall. What you have said in terms of identifying 
the tit for tat I think is very, very true. I have seen this 
over the years, both in the House and in the Senate. One side 
pushes the envelope on a particular rule or procedure. The next 
side comes back and says, you know, we have to show it to them. 
We are now in the majority. I am so thankful for your 
enthusiasm. You have been here for 3 years. You are still 
sticking with the idea of reform. A lot of Senators just give 
up and say whatever the rules are the rules. I appreciate that 
enthusiasm and coming up with proposals, and I hope that we can 
work to do something that makes the Senate work better and 
makes our Government work better, and the ultimate result 
obviously is producing for the people, and that is what we----
    Senator Lankford. I hope we can. At the end of the day, if 
the pause on this is to say, well, let us wait 3 years and we 
will see if a Democratic President is elected and then we will 
want to talk about changing the rules on that, I do not see any 
particular enthusiasm from Republicans to say you are right, 
that is the right moment, after we have faced all these cloture 
rules for 4 years, then to flip it and say we are not going to 
do that anymore. That is not a realistic way that is actually 
going to be addressed. What I am trying to look for is what are 
the realistic moments that will actually fix this. There are 
lots of messaging things to say how we would do it. How are we 
really going to fix this?
    Senator Udall. Well, one of the parts of this that when you 
say ``really fix it,'' when the rules change as I have seen 
them happen in the middle of a Congress--and we talked about 
the nuclear option----
    Senator Lankford. Yeah, like November of 2013.
    Senator Udall. Yeah, those kinds of--yeah, that is what I--
those kinds of things cause a lot of bitterness, and that is 
why I think, you know, rather than waiting until the next 
President, a year from now we have the 116th Congress coming 
in. We could work for a year, put our proposals out there, talk 
about them, and come up with a package.
    Senator Merkley and I, in fact, have been talking about, 
you know, a year out try to get out some proposals, see if we 
can pull people together in a bipartisan way.
    Senator Klobuchar [presiding]. Senator Udall----
    Senator Udall. Senator Klobuchar, you are back.
    Senator Klobuchar. I am. I have returned. But Senators 
Lankford and Merkley may miss the vote. I thought I would let 
Senator Merkley--while he is not on the committee, he is the 
only one here right now who has not asked questions or said 
anything, so, Senator Merkley, given your work on it, if you 
want to quickly comment before you leave for the vote.
    Senator Merkley. Well, thank you very much, Madam Ranking 
Member.
    Senator Klobuchar. You are welcome.
    Senator Merkley. I appreciate the chance to sit in on the 
conversation. The first Senate that I saw in operation was in 
1976 when I was here dropping out of college for a year to 
intern and volunteer for groups and watch how Congress worked. 
I had the chance to staff a tax reform bill that year in which 
there was never any suggestion of a super-majority needed for 
any amendment or moving to the floor, final vote. That was a 
very, very, very rare thing. In the course of these decades, we 
have gone from being what was essentially virtually always a 
simple-majority body to being a super-majority body. In the 
course of that, it would go from going the direction on almost 
all occasions that the majority thinks is the right direction 
to going on almost all occasions to which the minority thinks 
is the right direction. It is a very strange way and is not 
serving us well and is resulting in a lot of paralysis.
    I really appreciate that you are helping to instigate a 
conversation. I do hope that this committee, which, 
unfortunately, I do not serve on, will decide to bring in the 
many experts who have watched the Senate, understand what has 
worked, what has changed over time, to have a real intense 
dialogue about how we can possibly put together a set of 
proposals.
    The thing that Senator Udall and I have tried to do was to 
introduce when we were in the minority the same proposals that 
we introduced when we were in the majority. What we also tried 
to do was to introduce a package that would have things that 
benefited both sides so that it was not partisan, and that 
helped, made it easier to introduce it whether we were in the 
majority or the minority.
    I am very concerned on the nomination side about the impact 
on the pipeline of qualified individuals who want to serve, 
knowing what they have to go through. When folks come to me and 
say, ``Should I consider applying for or taking a position in 
the administration?'' I say, ``You know, is it one that 
requires Senate confirmation?'' If they say yes, I say, ``Well, 
you have got a lot to think about because the confirmation 
process has been one where you might sit in limbo forever.'' 
That seems particularly inappropriate to use advice and consent 
as a tool to essentially conduct partisan warfare on a 
President, no matter who is in power and who is in the 
minority.
    I think this is a really important conversation. I 
encourage the committee to continue it. When you came in, I 
held over two dozen meetings with Republican colleagues trying 
to create some momentum behind consideration of a rules 
package. I obviously failed in that effort. But if we have 
energy from both sides of the aisle to engage in this, perhaps 
we can make this institution work a lot better, not just the 
nominating process but also the process of debating bills.
    Thank you.
    Senator Lankford. Thank you. I appreciate that, and I will 
make just one quick comment, and that is, people really do lose 
track of not only when there is not a Senate-confirmed 
individual, how hard that is on the agency, but how hard that 
is on the individual. It is not uncommon for an individual to 
have to quit their job to be able to actually go through the 
Senate confirmation process, and they are sitting without 
income. Their family is exposed for months and months and 
months as partisan bickering here goes back and forth on 
whether we are going to do nominations. That is not helpful to 
those individuals, getting future individuals, or to the 
agencies as a whole.
    Senator Klobuchar. Thank you, Senator Lankford. Some of 
that other experience that I have had has been also about delay 
before they come up for a vote. As you know, it is not just the 
30 hours. That has been my experience with the ATF nominee, who 
we finally got through, or some of the judges.
    Anyway, you are the only one that has not voted here, and 
Senator Shelby is coming back, and I know you have been willing 
to relinquish voting to stay, but there is no one left to ask 
you questions right now. I suppose you could leave and come 
back.
    Senator Lankford. I would love to go vote.
    Senator Klobuchar. Okay. That would be a good idea.
    Senator Lankford. My state does expect me to vote. I would 
be glad to vote and come back, if you all would like me to be 
able to come back. I will be gone 8 minutes and do that.
    Senator Klobuchar. Okay. That will be great. We will be 
temporarily adjourned then. Okay. Thank you.
    [Recess.]
    Chairman Shelby [presiding]. The committee will come to 
order.
    Senator Alexander?
    Senator Alexander. Thanks, Senator Shelby.
    I am glad to have a chance to have a little more of a 
dialogue with Senator Lankford than I did before, and I want to 
thank Senator Shelby for having this hearing and the staff for 
working on it. You know, I mentioned the Supreme Court Justice 
who I heard say that he gets along well with another member of 
the Court who has completely different views because they try 
to remember that the institution is more important than their 
own opinion. This is the committee that really is the custodian 
of the Senate as an institution, and I am glad to see the 
hearing. I hope the hearing leads to discussions.
    I was just having a little discussion with Senator 
Klobuchar. Most of us want to be part of an institution that 
works, and we recognize once we are here for a while that the 
country, fractured as it is, needs an institution that builds 
consensus, and when we are at our best, that is what we do. I 
think back in our Health, Education, and Labor Committee of 
fixing No Child Left Behind, 21st Century Cures, the so-called 
Alexander-Murray small health care bill, which we have worked 
out and hopefully the Senate will pass and the House will pass, 
those are real triumphs because once they are passed into law, 
nobody is trying to repeal them because so many of us agreed.
    Senator Lankford, I read the conditions that existed on 
November 21, 2013, when Senator Reid and Democrats used the so-
called nuclear option. There were 20 judges and 56 executive 
nominations on the calendar. That is all there were. Only four 
of the executive nominations had been there more than 60 days. 
Maybe there is some sort of division between judges and 
executive nominations in terms of our ability to find a 
bipartisan solution here.
    Your proposal does not affect circuit judges or Supreme 
Court Justices.
    Senator Lankford. That is correct.
    Senator Alexander. It only affects Federal district judges. 
There are 19 judges on the calendar today that Senator 
McConnell could bring up. That is about the same number there 
were when the Democrats did the nuclear option, but there are 
105 executive nominations. That is twice as many as there were 
when Senator Reid did the nuclear option in 2013. Do you think 
it would help us come to some bipartisan rules change if we 
could agree to reduce the number of executive nominations on 
the calendar and continued to argue a little bit more about the 
judges?
    Senator Lankford. It would certainly help the dialogue. I 
am reminded of 2013 when the agreement was reached in that 
January time period to change to the 2, 8, and 30 rule, that 
Senator Reid and Senator McConnell had a colloquy back and 
forth on the floor at that point to be able to explain what was 
happening. At that time Senator Reid emphasized, though they 
were talking about times for cloture, cloture still should not 
be used--and his term was--``except in extraordinary 
circumstances.'' In his statement even the 2-hour time period 
should not be used except in extraordinary circumstances where 
there is no wide agreement. That is how they settled the 2013 
agreement saying, hey, we are not saying each person should go 
through this. The fear that I have is now that we have done 
this 60-plus times this year, we have set a new habit. We are 
gaining muscle memory that every nominee, whether district 
court and widely accepted, or whether a controversial Cabinet 
official, we are going to still go through the cloture. That 
does not help us as a body to be able to resolve it.
    My hope would be that we can have a simple method that is 
put out there, whether you are a judicial for a lower court or 
whether you are nominee and get that established but still go 
back to the practice that we had in the past that a President 
is allowed to be able to get his staff without clogging up the 
calendar where you cannot do legislation at the same time.
    Senator Alexander. Well, that is very helpful, and I would 
say to the Chairman that, you know, any agreement at all that 
had some significance that could come of your proposal that 
were adopted in the regular order--that means in a bipartisan 
way with 60 votes--would be helpful because at least it would 
show that we still know how to change rules the right way 
instead of the wrong way. Talking about muscle memory, that 
would at least be a small step in the right direction, and I 
suspect it would also encourage a change in behavior if we did 
that.
    Thank you very much for what you are accomplishing.
    Senator Lankford. Thank you. Senator Alexander, if I can 
make just one quick comment as well. Senator Merkley had 
mentioned earlier his desire to be able to see maybe some 
things that might be beneficial to the minority as well as the 
majority in this package. I did not have an opportunity to be 
able to respond to that, but let me just say briefly this is a 
nonpartisan issue. There will be future Democratic Presidents 
like there will be current Republican or future Republican 
Presidents. This is trying to establish a principle that, 
regardless of who is in the White House, they should be able to 
get their staff in place and to be able to do that in an 
expeditious way.
    Senator Alexander. Well, and I worry some about what will 
happen when you have a Democratic President and a Republican 
Senate or a Republican President and a Democratic Senate. 
Senators have gotten into the mode of voting against 
Presidential nominees so often in a partisan way that you could 
foresee a situation where it was not just a slowdown of the 
people who a President needs to appoint. He could not get 
people appointed just because people would be afraid to vote 
for the nominee of the President of an opposite party. That is 
completely different than it ought to be and completely 
different than it was when I came here not that many years ago. 
Presidential nominees were routinely brought to the floor, and 
we routinely voted for them, even if we might not have 
appointed them ourselves, because we respected the fact that 
people had elected a President and he or she had a right to 
create a Government.
    Senator Lankford. Right.
    Senator Alexander. Thank you very much, Senator Lankford, 
and thank you, Mr. Chairman. Thank you, Senator Klobuchar, to 
both of you, for your time and focus on this. I hope something 
comes of it.
    Chairman Shelby. Thank you, Senator.
    Thank you, Senator Lankford, for your appearance today. I 
think we have had the beginning of a pretty good debate here, 
and we will see what happens now. I agree with Senator 
Alexander and our Leader, and, Senator Klobuchar, I wish we 
could work together on a bipartisan agreement that would 
benefit not the Democrats or Republicans, but would benefit the 
U.S. Senate and the American people.
    Senators are advised that the hearing record will remain 
open for 5 business days so that they may submit any statements 
or questions for the record.
    [The information referred to was submitted for the record.]
    Thank you again, Senator, for your appearance.
    Senator Klobuchar. Thank you, Senator Lankford.
    Senator Lankford. Thank you for doing this.
    Chairman Shelby. The committee is adjourned.
    [Whereupon, at 3:57 p.m., the committee was adjourned.]

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