The Rules Dems Could Change To Keep The Tom Cottons Of The Senate From Delaying Biden Noms’ Confirmations

This article is part of TPM Cafe, TPM’s home for opinion and news analysis.

Forty. That’s how many of Joe Biden’s nominees the Senate will have likely confirmed when his presidency crosses the 100-day mark this Friday. On average, it took these nominees 49 days to move from nomination to confirmation. With over 1,100 seats throughout the executive branch left to fill (not to mention hundreds more in the Judiciary), that glacial pace should worry you. Unfortunately, it can get even slower. And thanks to Senator Tom Cotton (R-AR), it looks like it’s about to.  

Earlier this month, Cotton threatened to “refuse consent or time agreements for the nomination of any U.S. attorney from any state represented by a Democrat on the Judiciary Committee.” The reason behind the threat is expectedly petty — Cotton took offense when the Judiciary Chair cut his remarks short to move the committee to a vote on Vanita Gupta’s nomination for Associate Attorney General. But the content of the threat is no laughing matter. By forcing the Senate through even more procedural hoops, Cotton can single-handedly delay these nominations by days or weeks and increase the tradeoff between time spent on nominations and other Senate business. If Senate Democrats do not wish to leave their agenda at the mercy of Cotton (or, for that matter, any other supposedly aggrieved Republican who can deploy the same tricks), they’ll have to change the rules. 

But first, what exactly is Cotton threatening to do? And why would it be such a problem? 

To understand that, let’s take a brief look at how the Senate confirmation process works, at least in theory. After nominees have cleared the substantive stages of the Senate process (e.g. vetting and a committee hearing and vote), they are placed on the Senate’s Executive Calendar to await debate and a full-Senate vote. Here begins a series of delays. The full Senate cannot, for example, consider a nominee unless they have been on the Executive Calendar for a day.

Invoking cloture, which places a limit on the number of hours the Senate can consider a pending matter before a vote, takes two days thanks to a customary “layover” period between the introduction of a cloture motion and a vote on it (this period can run concurrently for multiple nominees at once). After that there is post-cloture “debate,” which precedes a final vote and usually extends for two hours per nominee sequentially. (Perhaps this was helpful in the past, but today, “debate” refers to Senators monologuing into a mostly empty room.) When you account for the Senate’s short work week, frequent recesses for in-district work, and legislative demands, these days-long delays easily turn into weeks-long slowdowns.  

Not every nomination passes through this series of procedural hoops. Unanimous consent agreements can be used to sidestep every portion of this process. Indeed, they were for nearly a third of the nominees who have been confirmed since Biden took office. And even when, as was the case for the majority of nominees, Republicans refused unanimous consent for one portion of this process, they did not for all of its steps. In many cases, for example, Republicans forced Democrats to file cloture motions for nominees — creating a two-day delay — but still offered unanimous consent to allow a vote on these nominees before the maximum number of hours of debate had passed.  

Now, Cotton is threatening to relinquish this lingering bit of cooperation for the 16 U.S. Attorney nominees for Democratic Judiciary members’ home states. The resulting delays, which on paper only last a handful of days, will undoubtedly extend much longer. Besides the problem of scheduling around short weeks and recess, there is the reality that Senate floor time is scarce. By demanding the full two hours of debate for each U.S. Attorney nomination (which, again, really means having Senators monologue to the C-SPAN cameras for two hours), Cotton can ensure that only a couple of nominations are approved in any given day, and create a chokepoint that slows everything else that comes after. 

It will also, critically, increase the tradeoff between time spent on nominations and time spent on everything else the Senate has on its agenda. That means that, for example, having a U.S. Attorney for Georgia who is actively working to advance Joe Biden’s criminal justice reform agenda will come at the cost of delays to the infrastructure package. The country and the planet cannot afford these tradeoffs.

For now, it’s just one Senator threatening to hold up a small number of nominees, but if his tactic is successful at hamstringing their partisan rival, it’s only a matter of time before other Republicans follow Tom Cotton’s lead. The thing is, Cotton’s move exploits completely arbitrary rules which Senate Democrats can change, if they are serious about using their majority to maximum effect. 

This is not without precedent. As partisan rancor has risen in recent decades so too has the overall length of the Senate confirmation process, leading Senate majorities of both parties to implement changes that reduce the minority’s power to delay. Until 2013, for instance, 60 votes were needed to avoid a filibuster and advance nominations for the executive and judicial branches alike. Every nomination also used to be subject to 30 hours of post-cloture debate. That time was temporarily reduced for the vast majority of nominees in 2013 and then again, permanently, in 2019.

Those changes, achieved through a procedural maneuver colloquially (and to some extent misleadingly) known as the “nuclear option,” did help the Senate confirmation process move faster. But there are still loopholes for Cotton and others to exploit — not out of any high-minded commitment to civic debate, but for pure partisan gamesmanship. Senate Democrats can and should go further. 

They can start by eliminating the delays associated with invoking cloture. Forcing the Senate to wait two days between the introduction of a cloture motion and the vote on it serves no obvious purpose other than to gum up the works. And indeed, this is the primary means that Senate Republicans have used to slow consideration of Biden’s nominees thus far. Why leave that power in their hands?

That change alone, however, is insufficient, as it leaves the time allocated for “debate” untouched. To fix that problem, Democrats could follow in their predecessors’ footsteps and reduce the time for post-cloture debate to, say, one hour. Or, they could get creative and allocate debate time to groups of nominees. So instead of debating nominees one-by-one, the Senate might debate 30 nominations over the course of 5 hours. 

This approach recognizes that most of the “debate” over nominations serves no purpose other than to stall. By the time nominees reach the Senate floor, they have already undergone extensive vetting and answered detailed questions about how they plan to perform their roles, giving Senators ample information to reach a decision. And, even if that wasn’t enough, the “debate” that occurs — Senators speaking into an empty chamber, sometimes not even on the topic at hand — is hardly well-suited for surfacing additional information or changing Senators’ minds when they’ve already been made up. Still, many might bristle at the idea of eliminating entirely the venue for raising final objections. By grouping nominations for debate, the Senate can preserve this space for deliberation — Senators can use the allotted time to speak on those nominations for which they have genuine concerns — while reducing the likelihood that “debate” becomes a weapon in partisan warfare. 

To be clear, neither of these proposals would be sufficient to resolve all of the delays in the Senate confirmation process. To do that, lawmakers will need to look to the vetting and hearing process, the pre-vetting that occurs in the White House, and, most importantly, the sheer number of nominees who are subject to Senate confirmation. But these changes would help shave days and weeks off of the process while reducing competition over precious Senate floor time. That’s a very good start.

As the country endures ongoing public health, economic, racial injustice and ecological crises, we cannot afford to fall victim to false tradeoffs. If we are to have any hope of responding adequately, we will need confirmed, energetic leadership throughout the executive branch and a robust legislative agenda. Senate Democrats cannot allow arcane Senate rules, and the GOP obstruction they facilitate, to stand in the way of either. 

Eleanor Eagan is a research assistant at the Revolving Door Project at the Center for Economic and Policy Research.