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The Senate confirmation process is broken — Senate Democrats can fix it

The U.S. Capitol is seen from the East Front Plaza on Tuesday, October 12, 2021.
Greg Nash

Key parts of President Biden’s agenda are falling victim to arcane Senate rules, and not just the filibuster. Dysfunction is slowing the Senate confirmation process to a crawl too, producing a backlog hundreds of nominees deep. For as long as these delays keep permanent officials out of their intended roles, they will limit the scope and ambition of the Biden administration’s agenda. Senate Democrats must act to change them. 

In the 271 days since Biden’s inauguration, the Senate has confirmed 154 officials. At that pace, the Senate will not have confirmed the 1200 total officials who are ultimately set to cross the Senate floor until … November of 2026. Even just clearing the current backlog of 224 pending nominations would take over a year. 

These delays rarely garner much attention outside of official Washington. But make no mistake: their consequences are severe. At its most mild, the lengthy process leaves critical functions in the hands of acting officials who, no matter how committed, lack a mandate to launch the most transformative programs or direct their components as effectively as permanent picks. 

In other cases, the Senate’s inability to promptly confirm nominees completely halts portions of the President’s agenda. This is true for the multi-member boards of independent agencies (e.g. the Federal Trade Commission) where acting officials cannot fill vacancies. Throughout the first half of this year, many were gridlocked between Republicans and Democrats while the nominees necessary for a Democratic majority awaited confirmation. Even now, delays are distorting the composition of agency leadership. 

Judicial vacancies also cannot be filled in any provisional manner. Biden has moved accordingly, nominating more judges (51) than any other recent president by this point in their term. Only sixteen, however, have been confirmed. If there’s any hope of counterbalancing the prior administration’s extraordinary imprint on the federal judiciary, Senate Democrats are going to have to move faster. 

Some of the factors that slow the confirmation process — like the time to vet nominees and conduct hearings — are intractable (although certainly not insurmountable). Other proposed solutions — like significantly reducing the number of appointees who require confirmation—- are unlikely to go anywhere in the immediate future. But some solutions, targeting the final stages of the process, are quite simple.

After nominees are voted out of committee, they must await consideration on the busy Senate floor. Existing rules increase the time that this requires and thus, the relative cost of considering any given nomination compared to other Senate business. To get to the point of voting, senators must first introduce a cloture motion, then wait two session days for it to “ripen” before proceeding. After that, up to two hours are devoted to “debating” the nomination. (Lawmakers generally spend this time speaking into a mostly empty chamber, often not even on the nomination at hand). The two day layover period can run for multiple nominees at once, but debate can only occur for one nominee at a time. 

Under these parameters, even if senators devoted eight hours per day to nominations, five days per week, it would still take them almost until the end of the year to fill just the spots for which there are pending nominations.

Senators know that this process is broken, which is why they avoid it at every opportunity. Through unanimous consent agreements, they often skip straight to the final vote. Republicans, however, are increasingly unwilling to give consent and pass up the chance to sabotage Biden. Since this summer, Sen. Ted Cruz (R-Texas) has been obstructing the confirmation of dozens of uncontroversial State Department and United States Agency for International Development (USAID) nominees by refusing to give consent. His stunt has resulted in months of delays with severe implications for national security. 

Fortunately, Senate Democrats can change the rules. It’s been done before, in very recent memory. Two reforms seem most promising. First, they can eliminate the two day period between a cloture motion’s introduction and the vote on it. Second, they can allocate blocks of time for debate on multiple nominations at once  — senators might, for example, “debate” twenty nominees over the course of four hours. This would preserve a senator’s right to raise concerns about specific nominees before a vote, but would focus discussion on actually controversial picks. Moreover, by eliminating the delays associated with the regular procedure, Democrats would neutralize Republicans’ power to withhold unanimous consent.

Needless to say, these changes wouldn’t fix everything but they would make a sizable dent. According to the White House Transition Project’s most recent analysis, just under one third of the time Biden’s nominations spent in the Senate was taken up in post-committee waiting.

If restoring the integrity of the advice and consent process is not reason enough for Democratic senators to act, they might consider their own self-interest. The Biden administration’s performance will undoubtedly weigh on Democrats’ chances of keeping the Senate majority in 2022. Moreover, the success of any bold legislation that Congress manages to pass will depend on the presence of permanent, empowered executive branch leadership to carry it out. Senate Democrats must act now to secure it. 

Eleanor Eagan is Research Director on the governance team of the Revolving Door Project. Jeff Hauser is executive director Of the Revolving Door Project.

Tags Advice and consent Filibuster Joe Biden nomination Ted Cruz

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