The Democrats’ “naked refusal” to accept the 2016 election results triggered a recent Senate rule change on approving judicial nominees, according to a lawyer for a public-interest law firm.
“Something had to be done to restore the original constitutional vision. Adopting the two-hour standard was sadly necessary to put the brakes on persistent partisan obstruction on judicial nominees,” wrote Ken Klukowski of the First Liberty Institute wrote.
He was referring to Senate Majority Leader Mitch McConnell’s decision to address the backlog of nominees by allowing only two hours of debate following a cloture vote for district court nominees.
Kluklowski said the change was triggered by the “unprecedented obstruction from liberal Senate Democrats.”
He explained that if the Senate “refuses to make a decision on a nominee, then that judgeship – including even a seat on the Supreme Court – could be left vacant indefinitely.”
“In addition to the federal courts, this nomination-and-confirmation process applies for senior positions in the Executive Branch. A president is only one person. For his administration to function, it requires more than 1,000 Senate-confirmed senior officials to carry out his orders and implement his agenda,” he wrote.
The confirmation process formerly focused on a candidate’s education, experience and character. But that standard was changed, he wrote, when the Democratic-controlled Senate “destroyed” Robert Bork’s Supreme Court nomination in 1987.
“Remember that senators have unlimited time for debate, which they can use to delay votes on nominees. It’s a historic tactic known as the filibuster. Senate Democrats began filibustering lower-court nominees during the first term of President George W. Bush,” he wrote.
Republicans reciprocated for Barack Obama’s nominees, and Senate Democrats invoked the “nuclear option” to approve nominees with a simple majority.
Then when Trump nominated “the supremely well-qualified Neil Gorsuch” and Democrats tried to filibuster, the GOP expanded the “nuclear option” to include Supreme Court nominees.
“For years, Senate Democrats abused another feature of the Senate’s rules,” Kluskowksi said. “To prevent that from happening, Senate leaders take a cloture vote to limit the amount of debate time and keep business moving forward. After a cloture vote, debate was usually allowed to continue for another 30 hours. That was never a major problem previously; the number of cloture votes required to end filibusters of presidential nominations throughout all of U.S. history until 2017 could be counted in the dozens.”
But for Trump’s nominees, Democrats have demanded 128 such votes already.
So “hundreds of key administration positions remain vacant, and some judicial nominees have been waiting almost two years for an up-or-down vote in the Senate,” he said.
“This is all a naked refusal to accept the results of the 2016 presidential election,” he wrote.
“By reducing the number to two hours for each nomination, the Senate has an opportunity to confirm the 53 district court nominees that are pending – which make up about 36 percent of all judicial vacancies.”