Much has been made of Democrat “obstruction” when it comes to confirming President Trump’s nominees for positions ranging from agency officials to federal judges. Senate Majority Leader Mitch McConnell noted it in a press release last week, where he blamed the Senate’s slow pace of confirmations on Democrats getting in the way.
But is this actually the case?
A closer examination of the Senate’s rules and procedures provides the answer: no, Democrats are not able to permanently obstruct the confirmation of Trump’s nominees.
Democrats can push short term delays of the process. They no longer have the tools to indefinitely obstruct.
What happened in 2013 is critical to understanding the answer to this question. In 2013, then-Majority Leader Harry Reid deployed the “nuclear option” on the Senate. This effectively eliminated the filibuster – which requires 60 votes to overcome – for nominations.
This means that none of Trump’s nominees face a 60-vote hurdle to confirmation. Put another way, all of them can be confirmed with a simple majority vote.
So what’s the hold up?
Two things, both of which are tactics historically used by both Republicans and Democrats when they are in the minority.
The first is the Senate’s schedule. Votes have to be scheduled, and while the Democrats can no longer filibuster, they can force every nomination vote to last for several days. But that’s all they can do.
To overcome this delay tactic, Republican leaders simply need to keep the Senate in session. When the requisite debate time passes, a vote will occur. Instead, Republican leaders only keep the Senate in session an average of 2.5 days a week. Between the Republican’s failure to work and the Democrats insisting on delay tactics, the pace of confirmations has slowed to a crawl.
The second has to do with a tradition called the “blue slip.” This Senate tradition (note, this is not a Senate rule) has historically allowed a home-state senator to stop lower-court nominees by refusing to return a sheet of paper – the blue slip – to the Judiciary Committee. Democrats have, for months, refused to turn in their blue slips, thus blocking qualified nominees.
However, this is merely a Senate tradition, one born of days when courtesy was employed far more in the Upper Chamber. It was not originally meant as a tool of obstruction, and Republicans, if they so choose, can simply ignore the courtesy and bring judicial nominees to the floor for a vote.
Rather than complaining about Democrats unsurprising attempts to thwart the Trump agenda, Republican leaders should use the resources at their disposal to overcome them.
The truth is that Democrats no longer have the tools to indefinitely obstruct nominees. Any hold up from Republicans in confirming Trump’s nominees is simply an unwillingness to do the work.