[Congressional Record Volume 163, Number 209 (Thursday, December 21, 2017)]
[Senate]
[Pages S8215-S8217]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                          NOMINATIONS PROCESS

  Mr. LANKFORD. Mr. President, maybe my colleagues have heard through 
public and private conversations over the past year that I believe the 
Senate is moving gridlock from here on Capitol Hill to all across the 
city and across the Nation. The reason for that is how we do 
nominations and the length of time on nominations. It is time for the 
Senate to fix the Senate's rules.
  Here is how it works. As this body knows extremely well, we have over 
1,000 nominees who come from the President. In the first year of a new 
Presidency, a vast amount of time is spent in getting those 1,000 
people through the nomination process. Each one of those is selected by 
the White House. They do their own vetting, and then they send them 
over to the Senate.
  The Senate has the constitutional responsibility for advice and 
consent. When they come through the Senate, they will go through 
background checks, evaluations, and conversations with staff on both 
sides of the aisle.
  They then come to the committee, go through a committee process and a 
hearing, they are voted on in that time period, and then they move to 
the floor.
  When they move to the floor for debate, typically, for most of the 
years of the Senate, they have already gone through the committee 
process. Every Member of the Senate has the opportunity to be able to 
take a look at their information. And then they move through with a 
simple-majority vote. That is the way nominations have moved for most 
of the history of the Senate.
  A few years ago--20 or so--some individual Senators started asking 
for cloture votes. Those cloture votes started to slow down the process 
on about 3 or 4 nominations a year; then it became 9 or so nominations 
a year; then it moved to as crazy of a number as 13 or so a year, of 
the 1,000 or so moving through.
  That became such a nuisance that in 2013, my Democratic colleagues 
called for something they called the nuclear option, to say we will 
just take nominations not from 60 required to be able to get to cloture 
but just to 51. There was debate and internal conversation about that 
because Republicans, quite frankly, were holding up 15 or so 
nominations a year with the cloture process. So there was a big debate 
about that.
  In the beginning of President Obama's second term, Republicans and 
Democrats came together and they changed the rules of the Senate for 2 
years and said: OK, truce. The simple rule of the Senate was for any 
cloture vote, if there was one called for--again, typically, you would 
never call for one, but if there was one called for, there would be 2 
hours of debate for a district court judge, 8 hours of debate for most 
nominees, and 30 hours of debate for Supreme Court, circuit court, or a 
Cabinet-level appointment. But even Harry Reid, when he stood on the 
floor, said this would be only--his words--``extraordinary 
circumstances'' if you should ask for a cloture vote at all. But if 
they were asked for, it would be 2 hours, 8 hours, or 30 hours. Prior 
to that, all nominations were 30 hours of debate, literally taking up 
an entire day to move one person, knowing that you have to move 1,000.
  A few months after that, still in 2013, Democrats still frustrated 
that Republicans were calling for some cloture votes still, moved to 
have the nuclear option entirely and just transition all nominations, 
except for the Supreme Court, to just 51 votes. So now they had the 
rule of expediting 2 hours, 8 hours, and 30 hours, and the new ability 
to move them all with just 51 votes.
  Quite frankly, if you are going to change the rule to 51 votes, you 
probably need to change the cloture rule as well. They just did it in 
reverse. They changed the rule for how many hours it would take and 
then later changed the rule for how many people it takes to go through 
the process.

[[Page S8216]]

  Now what has happened? Remember I argued that we had 13, 14, 15 
people held up in cloture in a year? This year, so far, there have been 
64 nominations held up in cloture votes. That is 64 days in the Senate 
we could do nothing else but sit here waiting. Now, it wasn't for 
debate. It may sound as if it is being held for 30 hours of debate for 
that time period. Debate normally didn't happen. Most of the time, this 
Chamber was empty. It was just that 30 hours was demanded to shut down 
the body as a whole, 64 of those in this year.
  What has it brought us? It has brought us more animosity, more 
division, and more frustration. My Democratic colleagues a few years 
ago were screaming that we should have the nuclear option because 
Republicans were so irrational with 15 cloture votes. Yet we have 
watched 64 occur this year.
  Earlier this week, I sat down with the Rules Committee and brought a 
very simple option to everyone, Democrats and Republicans alike, and we 
had a great turnout to be able to just talk through the process. My 
simple presentation was, let's take the rule that was agreed to in 
2013, that Harry Reid and the Democrats brought at the beginning of the 
second term of President Obama, and let's have the rule for each 
nomination be 2 hours, 8 hours, and 30 hours. Let's move back to the 
tradition that Harry Reid had, which is to say let's make cloture votes 
only extraordinary on a nomination, if needed at all, but if they are, 
2 hours, 8 hours, or 30 hours. To do the exact same thing now is what 
was agreed on in 2013 and 2014.
  By the way, Republicans joined with Democrats during that time period 
and passed that new rule, which would put us at disadvantage with 78 
votes.
  I don't think it is too much to ask to say that if we are going to 
get the Senate back to work again, then let's actually get back to work 
again. Let's put us in a process that actually gets there.
  What happens in the meantime when that does not occur? I will tell 
you what happens. In the meantime, we have agencies all over this town 
that can't answer a question because the bureaucrats are waiting on a 
Senate-confirmed individual to be able to lead that agency--to be the 
Secretary, Under Secretary, Deputy Secretary, whatever the task may be, 
the counsel for that particular agency--so they sit and wait. So our 
constituents who are trying to get a permit in certain places or trying 
to get an answer or trying to get disaster relief--all they can say in 
the office is, we can't do that until we get a Senate-confirmed 
position in place. But we can't get Senate-confirmed positions in place 
until my Democratic colleagues will actually allow individuals to 
actually come up and be debated.
  What else happens? The other thing that happens is, we can't do 
legislation in this body; we can only do nominations. With 1,000 
different positions that are open, typically they move through rather 
quickly and they move through the process. But when 64 days are held up 
just for that, during that time period, you can't do anything else but 
sit and go through what is called the cloture 30 hours. You can't bring 
up other legislation.

  Then what happens? Well, then my Democratic colleagues come to the 
floor and say: We haven't had a single debate in this body on CHIP. We 
haven't had a debate on infrastructure. We haven't had debate on any of 
these things. Why won't we move a bill on all of these things?
  At the same time, they know it is because they blocked the floor from 
being able to move legislation because of continual cloture votes over 
and over and over. It is a bizarre game that doesn't lead to solutions; 
it leads to greater animosity. It is the same frustration that has 
existed for a while; it is just getting louder.
  At some point, we have to put in a process and say: How do we get out 
of this? How do we fix this? I think the best way to fix this is to 
take a bipartisan solution that was agreed to before when Democrats 
were in the lead, to agree to it now and say that is going to be the 
permanent rule, just to be able to move a set of ideas.
  For what is historically called the greatest deliberative body in the 
world, wouldn't it be nice to actually get back to deliberating again, 
spending more time on legislation rather than more time arguing about 
why aren't debating it when everyone secretly knows the reason, which 
is because we can't get it to the floor?
  I do grow tired. I grow tired of hearing all the political statements 
and accusations.
  Republicans hate children.
  They want to throw them out.
  They don't want them to have health care.
  They hate people of color.
  They are trying to exclude people from voting.
  They are trying to keep people from having tax reform.
  They only care about the wealthy.
  Just over and over, when at the same time, the undercurrent is out 
there to keep anything from being discussed on the floor. It is an 
interesting strategy to paint your ``enemy,'' but it doesn't help the 
country--intentionally divisive without a solution.
  In 2001, the first year of a new President, there were 51 nominations 
pending that first year.
  There is an interesting thing in the Senate rules. It is the 
wonderful rule XXXI that no one has heard of. It states that at the end 
of a year, any nominations that are still out there can be 
automatically thrown back to the White House and they have to start all 
over again. They have to renominate them. They have to go through the 
whole process. They have to go through committees.
  At the end of the first year of President Bush, there were 51 
nominations still sitting there at the end of that year. On 49 of them, 
this body, by unanimous consent, said: No, we will just hold them over. 
We are fine. We don't have to send them all back to the President.
  In 2009, in President Obama's first term, there were 72 folks. For 64 
of those, this body--every Republican and Democrat--agreed to just 
leave them here and not make them go through the whole process again, 
which would have been absurd.
  As of now, we have 122 pending at the end of President Trump's first 
year. I am interested to know, when Republicans gave Democrats 
unanimous consent to be able to maintain their nominations in the past, 
what happens now. Will this be yet another sign of pure politics rather 
than actually helping the country get stuff done?
  I look forward to the day when we can work toward solutions, not just 
argue and banter back and forth with political statements. If we are 
going to get stuff solved, let's not pretend and play games and put 
each other down; let's actually sit down in a room and get stuff 
solved. Let's fix the rules of the Senate, whether they be the budget 
rules that keep us from actually having real budget debates or the 
rules of the Senate that keep us from actually working rather than 
allowing us to actually do work.
  The rules of the Senate and the process in the Senate are determined 
by the Senators, so we alone are to blame when the Senate is not 
working. There is no finger-pointing. There is no ``it is that party.'' 
There is no ``it is that person.'' It is all of us.
  So my recommendation is simple. Let's fix it. Let's resolve the 
issue. Let's do the right thing in the right way.
  With that, I yield the floor.
  The PRESIDING OFFICER (Mr. Cassidy). The Senator from Colorado.
  Mr. BENNET. Mr. President, this is not the topic that I came to the 
floor to talk about; I will talk about it in a minute. But while the 
Senator from Oklahoma is here, I thought I would just respond to what 
he was saying--not on the merits of his particular proposal, because I 
haven't had a chance to study that yet, but to his plea that this place 
start to work again. I couldn't agree more with that sentiment.
  The Founding Fathers were very deliberate people, and they understood 
that in exercising self-government in the Republic that they were 
establishing, which subsequent generations of Americans have made more 
democratic over time, that we would have disputes. People these days in 
our political system and especially on the cable television at night 
seem to be astounded that there are people who don't see the world the 
way they see the world. The Founders knew that, by definition, if we 
were going to be a self-governing republic, we would have 
disagreements, and they set out to form

[[Page S8217]]

an incredibly elegant mechanism to resolve those disputes. It was 
elegant on the outside of this Chamber--freedom to assemble, freedom of 
speech, freedom of religion, the right to vote--and it was elegant on 
the inside of this Chamber. And generations of people who occupied this 
place understood that the way it was meant to work was not that you 
always got your way all the time and that part of being here was not 
just to have disputes but to resolve disputes--and not even our 
disputes but disagreements that the country might have for a legitimate 
reason--and, on average, hoped that we would move the country forward.
  I quite agree that recently--certainly in the time that I have been 
here--we have been using this place simply to have disputes, not to 
resolve them. That may be OK if we were in North Korea or in the Soviet 
Union--the old Soviet Union; it doesn't work in a democratic republic.
  I want to finish a little bit of the history that my friend from 
Oklahoma talked about. After the Democrats invoked the nuclear option, 
which I have said before on this floor is the worst vote that I ever 
took as a Senator, the now majority leader pocketed that precedent when 
we changed the rules in the middle and used it--used the nuclear option 
to change the rules so that now a person gets a lifetime appointment on 
the Supreme Court not with 60 votes but with just 51 votes. My issue 
with that is that now your party can advance people to the Supreme 
Court without any reasonable expectation that my party should take 
responsibility for it, or vice versa.
  Instead of having potential nominees come here and say: You should 
put me on the court because I can attract both Democratic and 
Republican votes because I have an open mind, I worry we are going to 
have people from both sides say: We are going to have a litmus test for 
Supreme Court nominees, which says we either have the most conservative 
jurist in the country or the most liberal jurist in the country, 
depending on who it is. We have infected the Supreme Court with the 
partisanship of this body.
  My hope is, we can actually come together on a set of rule changes 
that would recognize not just that this place may need to move a little 
faster in the 21st century but that we ought to be pushing people 
together to work in a bipartisan way on behalf of the country.
  Without passing on the merits of the proposal, I thank the Senator 
for coming to the floor to talk about--to put it in the vernacular--how 
busted this place is.

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