Better in their words…

The Democrats get away with it because the press doesn’t call them out on it.
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WSJ 8/4/2018
By David B. Rivkin Jr. And John Shu

When Harry Reid and the Democratic Senate abolished the filibuster for most nominations in 2013, the idea was to overcome obstruction from the Republican minority and allow President Obama to fill positions expeditiously. Now that Republicans hold the White House and a Senate majority, Democrats wish they hadn’t given up the filibuster. Yet they’ve managed to subject many of President Trump’s nominations to lengthy delays anyhow. It took the Senate almost seven months to confirm Ric Grenell as Ambassador to Germany. Jeff Clark, whom Mr. Trump nominated more than a year ago to head the Justice Department’s Environment and Natural Resources Division, still awaits his confirmation vote. Likewise Eric Dreiband, Mr. Trump’s pick for the Civil Rights Division. The Senate finished their hearings last year, and no member has raised a question about their qualifications.

On average it has taken the Senate three months to confirm Mr. Trump’s executive-branch nominees. President Obama’s nominees needed about 2½ months on average and President George W. Bush’s needed about 1½ months—even though the filibuster was in place for all of Mr. Bush’s eight years and more than five of Mr. Obama’s. In many instances Democrat obstructionism today ensures that Obama administration holdovers occupy key executive-branch positions 20 months after the 2016 presidential election.

So how have the Democrats done it without the filibuster? By weaponizing a pair of Senate rules. Rule 22, which covers “cloture,” allows for eight separate time-consuming steps. Rule 6, on “roll-call votes,” can require each individual senator to verbalize “yea” or “nay,” instead of a simple group voice vote.

“Cloture” is a venerable Senate procedure, dating to the early 20th century, which was created not as a dilatory tactic but the opposite—a way of ending filibusters and forcing a matter to a floor vote. The Senate first invoked cloture on Nov. 15, 1919, to end a filibuster of the Treaty of Versailles. From 1919 until 1963, the Senate invoked cloture five times, or about once every nine years, and never to delay a confirmation vote.

Mr. Reid’s 2013 move reduced the threshold for invoking cloture on nominations from three-fifths of all seated senators (60 when the chamber has no vacancies) to a simple majority. That means a minority can no longer “win” a cloture vote and prevent the majority from confirming the appointment.

But a tiny minority can still demand a cloture vote as a way of slowing things down. Only 16 signatures on a cloture petition are needed to complete the first step. Then the process is grindingly slow: The Senate clerk reads the petition; an “intervening day” must occur for the cloture petition to “ripen” or “mature”; a live quorum call has to take place; the majority leader presents the cloture petition; the actual cloture vote occurs; up to 30 hours of “post-cloture debate” ensues; then, finally,

Obama’s nominees faced only 17 cloture votes in his first term. Trump’s have faced 108 in 18 months.

the actual confirmation vote arrives.

The numbers tell the story: The Senate held only one cloture vote on any nominee (executive or judicial) during George H.W. Bush’s entire presidency, 10 during Bill Clinton’s first term, four during George W. Bush’s first term, and 17 during Barack Obama’s first term. Mr. Trump has been in office a little more than 18 months, and there have been 108 cloture votes on his nominees.

These delays are usually not about substantive objections. Often Democratic senators eventually vote for confirmation. Their purpose manifestly is to snarl the Senate calendar and severely limit the number of confirmation votes. Roll-call votes exacerbate cloture delays because they take a long time to organize and conduct. By contrast, a voice vote, once scheduled, takes virtually no time at all. And it takes only 11 senators to demand a roll-call. Again, the numbers illuminate the trend: the Senate held 21 nomination roll-call votes during George H.W. Bush’s presidency, 13 during Mr. Clinton’s first term, 60 during George W. Bush’s first term, 46 during Mr. Obama’s first term—and 119 since Mr. Trump took office.

The Senate has traditionally operated under the principle that the president is entitled to nominate people who reflect his philosophies and policies, especially within the executive branch. Cloture, roll-call votes, and other Senate procedures were not designed to stop confirmations. The current practice is a misuse.

Majority Leader McConnell announced that he will shorten, if not cancel, this year’s August recess. When he did so last year, the Senate confirmed 77 nominations with no unnecessary floor debate. He also should consider having the senators work full weeks, and some nights and weekends.

More fundamentally, Mr. McConnell and Rules Committee Chairman Roy Blunt should put a stop to these abuses. The Senate should promptly amend its rules to ensure that its procedural rules, in particular Rules 22 and 6, may not be used to delay a president’s nominations unless the majority leader, the minority leader, and both parties’ top members of the applicable committee all agree to do so. This would ensure fairness to presidents and senators regardless of party.

Messrs. Rivkin and Shu practice appellate and constitutional law in Washington and Newport Beach, Calif., respectively. Mr. Rivkin served Presidents Reagan and George H.W. Bush in the White House Counsel’s Office and the Department of Justice; Mr. Shu served Presidents George H.W. Bush and George W. Bush.