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McConnell sets stage for 'nuclear option' to change rules on judges

Senate Majority Leader Mitch McConnellAddison (Mitch) Mitchell McConnellPressure builds for coronavirus relief with no clear path to deal Top GOP senator warns government funding deal unlikely this week Criminal justice groups offer support for Durbin amid fight for Judiciary spot MORE (R-Ky.) filed a procedural motion Thursday to set up a rules change in the Senate next week that will speed up votes to confirm President TrumpDonald John TrumpTrump alludes to possible 2024 run in White House remarks Trump threatens to veto defense bill over tech liability shield Tiger King's attorney believes they're close to getting pardon from Trump MORE’s nominees to federal district courts and sub-Cabinet-level executive branch positions. 

McConnell filed cloture — a motion to cut off dilatory debate — on a motion to proceed to Senate Resolution 50, which would dramatically reduce the amount of time Trump’s nominees have to spend on the floor and let Republicans confirm more of his picks. 

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The resolution would reduce the amount of floor time that must elapse between when the Senate votes to invoke cloture on a nominee and when a final vote is held from 30 hours to two hours. 

“I come to the floor to discuss the unprecedented obstruction that has faced President Trump’s nominees for the past 26 months and counting and to announce the Senate is going to do something about it,” McConnell said on the floor.  

McConnell’s action Thursday sets up a vote next week on what would be a permanent standing order to reduce debate time for district court and most executive branch nominees. It needs 60 votes to pass. 

Senate Republicans say if Democrats stop the resolution from getting 60 votes, they will go ahead with the nuclear option, a controversial tactic used to set a new Senate precedent, and essentially rewrite the Senate rules, with a simple majority vote. 

It’s called the nuclear option because it’s viewed as a drastic escalation of partisan warfare. 

“The status quo is unsustainable for the Senate,” McConnell said. “It’s unfair to this president and the future presidents of either party. It cannot stand … it will not stand.”

McConnell noted that the Senate has held 128 cloture votes to overcome Democratic delaying tactics for 42 different executive branch positions, including for “uncontroversial assistant secretaries [and] agencies’ general counsels.”

He said the Senate has confirmed 22 percent fewer nominations during Trump’s first two years in office compared to President Obama’s first two years in office.

Senate Republicans have seriously discussed changing the rules with a straight party vote since their one-day retreat at Nationals Park in Washington in mid-January.

Senate Democratic Leader Charles SchumerChuck SchumerMcConnell: COVID-19 relief will be added to omnibus spending package Overnight Health Care: Moderna to apply for emergency use authorization for COVID-19 vaccine candidate | Hospitals brace for COVID-19 surge | US more than doubles highest number of monthly COVID-19 cases The five biggest challenges facing President-elect Biden MORE (N.Y.) slammed McConnell for undermining the Senate’s power to check the executive branch.

“Sen. McConnell’s approach has always been to manipulate Senate rules when it helps him and then change Senate rules when the tables turn; this is just another step in his effort to limit the rights of the minority and cede authority to the administration,” Schumer said in a statement.

Republicans control 53 seats while Democrats hold 47 seats, which means McConnell needs at least 50 senators to vote for the nuclear option, assuming that Vice President Pence will break a tie in his favor. 

At least three Senate Republicans, however, say they haven’t yet decided whether to vote for a rules change by simple majority: Sens. Susan CollinsSusan Margaret CollinsBipartisan, bicameral group unveils 8 billion coronavirus proposal The Hill's Morning Report - Presented by Mastercard - GOP angst in Georgia; confirmation fight looms Biden budget pick sparks battle with GOP Senate MORE (R-Maine), Cory GardnerCory GardnerMark Kelly to be sworn in as senator on Wednesday Hillicon Valley: Trump fires top federal cybersecurity official, GOP senators push back | Apple to pay 3 million to resolve fight over batteries | Los Angeles Police ban use of third-party facial recognition software Senate passes bill to secure internet-connected devices against cyber vulnerabilities MORE (R-Colo.) and Lisa MurkowskiLisa Ann MurkowskiPressure builds for coronavirus relief with no clear path to deal Bipartisan, bicameral group unveils 8 billion coronavirus proposal The Hill's Morning Report - Presented by Mastercard - GOP angst in Georgia; confirmation fight looms MORE (R-Alaska).

Collins and Gardner face reelection next year in states that Democrat Hillary ClintonHillary Diane Rodham ClintonTrump has discussed possible pardons for three eldest children, Kushner: report McCaskill: 'Hypocrisy' for GOP to target Biden nominee's tweets after Trump Biden budget pick sparks battle with GOP Senate MORE won in 2016. 

Collins said she had not yet made a decision and is meeting with her staff “to find out the specifics on it.”

“It’s my understanding that Sen. McConnell is trying to reach out to the minority leader on the issue. So I want to see what the results of that are,” she said. 

Democrats have tried to negotiate a deal with McConnell that would lower the post-cloture time that must elapse for most judicial and executive branch nominees but win concessions for the minority party, according to sources familiar with the talks. 

Democrats have discussed postponing the rules change until 2021, after the presidential election, or to limit the change to sub-Cabinet-level executive branch nominees but exempt district court judges, according to sources familiar with the negotiation. 

The third idea would be to lower lower floor time for judges and executive branch nominees but restore the Senate’s so-called blue slip tradition under which both senators from a judicial nominee’s home state must give a green light before the nominee can proceed, sources say. 

McConnell, however, has rejected all three offers. 

A Senate aide said Thursday afternoon “the talks are breaking down.” 

Murkowski and Gardner on Thursday said they support speeding up consideration of Trump’s nominees but stopped short of saying they would vote for the nuclear option. They want to first see if the resolution can win over seven Democrats to overcome the 60-vote threshold.

“We have seen that there have been abuses of the process and I’d like to see us change that with a full 60 [votes]. If we can’t, then we’ll have to consider what we’re doing,” Murkowski said.

Gardner noted there was a bipartisan agreement between Schumer, then the chairman of the Senate Rules Committee, and Sen. Lamar AlexanderAndrew (Lamar) Lamar AlexanderMurkowski: Trump should concede White House race Mark Kelly to be sworn in as senator on Wednesday Congress set for chaotic year-end sprint MORE (R-Tenn.) in 2013 under Obama to reduce post-cloture debate time for district court nominees to two hours.

“They agreed to a simplified, streamlined non-obstructive process then, why won’t they agree to the non-obstructive process now?” he said.

The 2013 agreement only accelerated the consideration of nominees for whom the Senate agreed by a three-fifths super majority to bring to a final vote, according to the Congressional Research Service.

Gardner said he hopes Democrats “will vote for a rule change” but when asked if he would support the nuclear option if Democrats balk, Gardner said he would have “to see what happens after that.”

A Senate Republican leadership source on Thursday predicted that McConnell will have enough GOP votes to change the rules unilaterally.

Jordain Carney contributed to this report that was updated at 5:25 p.m.