Opinion | Judiciary

Weaponizing the confirmation process damages government

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It is well known that Senate Democrats try to stall confirmation of the judicial nominees of President Trump by forcing the upper chamber to take separate votes to end debate on nearly every one. Less well known is the fact that they are doing the same to his executive branch nominees.

A brief recap is in order. The Senate must end debate on any nomination before taking the final confirmation vote. Traditionally, the majority and minority leaders cooperated on how much debate if any was needed and when to schedule a final vote. By traditionally, I mean that was the regular order of the Senate confirmation process for more than two centuries.

If the minority leader will not cooperate, the only way to invoke cloture, or end debate, is the formal process under Rule 22. It involves filing a cloture motion and taking a separate cloture vote, adding days to the timetable. Before 2013, invoking cloture required 60 votes. Senators who lacked the votes to defeat a nomination outright could still prevent confirmation by preventing a confirmation vote. That is the basic definition of a filibuster.

But in late 2013, Senate Democrats had lowered the vote threshold for cloture to a simple majority, which is the same as for confirmation. As a result, the Rule 22 cloture process can be used to delay, but not defeat, a nomination. Senate Democrats are using this tactic for all it is worth. As the judicial appointment tracker by Heritage Foundation shows, the Senate has been forced to take more than 80 cloture votes on judicial nominees by Trump, which is over 10 times as many as for the previous five presidents at this point combined. The numbers could not be clearer.

Since 1949, the Senate has also taken more than 200 cloture votes on presidential nominations to over 100 different executive branch positions. These range from critical Cabinet secretaries to members or even general counsels of boards or commissions that few people have ever heard of. More than half of those cloture votes have been on executive branch nominees by Trump. That is more cloture votes on his executive branch nominees than the previous nine presidents at this point combined.

Just as telling, nominees by Trump to more than 40 of those agencies were the first in history to run the cloture gauntlet. These include solicitor general, secretary of the Energy Department, director of the Office of Management and Budget, United States trade representative, director of National Intelligence, director of the Counterterrorism Center, secretary of Housing and Urban Development, deputy secretary of the Defense Department, and deputy secretary of Health and Human Services.

Indeed, while these are important positions in government, remember that the only purpose of a cloture vote today is to delay the inevitable. Nominees who have enough votes for confirmation have enough votes to invoke cloture. The first cloture vote on a nominee to be a member of the Federal Deposit Insurance Corporation was on Jelena McWilliams last year. She was then confirmed without either opposition or even a roll call vote.

The first cloture vote on a nominee to be an assistant secretary of the Commerce Department was on Jeffrey Kessler earlier this year. Only three Democrats voted against cloture. He was confirmed without a roll call vote. The first cloture vote on a nominee to be undersecretary of the Transportation Department came two years ago on Derek Kan. Only nine Democrats voted against cloture and only seven opposed confirmation.

These procedural games have kept the judiciary in the longest period of triple digit vacancies in nearly three decades. The executive branch is hobbled, without a full set of appointed leaders over halfway through the first term of Trump. Indeed, this serves no one well. Weaponizing the confirmation process not only shows contempt for the process, but it damages the function and integrity of all three branches of government.

Thomas Jipping is a senior legal fellow and deputy director of the Edwin Meese Center for Legal and Judicial Studies at the Heritage Foundation.

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