[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
__________
Printed for the use of the Committee on Rules and Administration
[GRAPHIC NOT AVAILABLE IN TIFF FORMAT]
Available on http://www.govinfo.gov
U.S. GOVERNMENT PUBLISHING OFFICE
28-423 WASHINGTON : 2019
-----------------------------------------------------------------------------------
For sale by the Superintendent of Documents, U.S. Government Publishing Office,
http://bookstore.gpo.gov. For more information, contact the GPO Customer Contact Center,
U.S. Government Publishing Office. Phone 202-512-1800, or 866-512-1800 (toll-free).E-mail,
[email protected].
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.]
APPENDIX MATERIAL SUBMITTED
----------
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
[all]