Nuclear Winter In The Senate… Or Not

Since Democrats invoked the nuclear option, reducing cloture on judicial and executive nominations, there are serious concerns that those actions would result in fallout. Would the Republican minority, in retaliation to losing significant leverage in the nominations process, attempt to drag out every nomination and/or bill?

So far, that can’t be answered definitively. Some reporters have suggested otherwise. For example, last night Republicans would not yield back their debate time on the nominations put forward by Reid on Monday. This dragged out the process somewhat. Reid is anxious to get these nominations through before the end of the session (if they don’t, those nominees go back to the President). So Reid forced the Senate to stay in session all night in order to use that debate time and confirm the nominees. This looks like evidence of fallout.

However, there are other instances that do not fit the fallout narrative. Take the Millett and Pillard nominations to the DC Circuit Court. In both cases, the Senate used a unanimous consent agreement to expedite debate (hat tip to @mansfield2016). What could have taken 30 hours actually took a very limited amount of floor time. These are two big instances where Republicans could have objected but didn’t. These cases are particularly significant because they would have taken the longest to confirm. The absences of serious obstruction on these nominations are giant counter examples to the broad narrative currently forming.

That said, the real fallout will most likely occur at the beginning of next Congress. There is a high probability debate time on all nominations will return to 30-hours. Currently, the filibuster deal brokered at the beginning of the Congress (S.Res.15) limits debate to 8-hours on most non-major nominations and 2-hours on district court judges. Because this is not a standing rule, it will have to be passed again at the outset of next Congress to extend those debate times. However, in the wake of the nuclear option, this probably will not happen. Now that the majority can cut off debate on almost all nominations, there is little incentive for the minority to support the resolution. They will want every opportunity to extend debate and gum up the works in the 114th Congress. This will likely be the most significant fallout from the nuclear option. No matter who is in the minority, there is no reason to bargain on limiting nominee debate time. So expect debate on judicial and executive nominations to return to 30 hours a year from January.

Josh Huder is a Senior Fellow at the Government Affairs Institute

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