U.S. GOVERNMENT PUBLISHING OFFICE

28–423 WASHINGTON : 2019

S. HRG. 115–582 

A RESOLUTION TO IMPROVE PROCEDURES 

FOR THE CONSIDERATION OF NOMINATIONS 

IN THE SENATE 

HEARING 

BEFORE THE

COMMITTEE ON RULES AND 

ADMINISTRATION 

UNITED STATES SENATE 

ONE HUNDRED FIFTEENTH CONGRESS 

FIRST SESSION 

DECEMBER 19, 2017 

Printed for the use of the Committee on Rules and Administration 

( 

Available on http://www.govinfo.gov 


RULES-408278 with DISTILLER
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COMMITTEE ON RULES AND ADMINISTRATION 

FIRST SESSION 

RICHARD SHELBY, Alabama, Chairman 

MITCH MCCONNELL, Kentucky 

THAD COCHRAN, Mississippi 

LAMAR ALEXANDER, Tennessee 

PAT ROBERTS, Kansas 

ROY BLUNT, Missouri 

TED CRUZ, Texas 

SHELLEY MOORE CAPITO, West Virginia 

ROGER WICKER, Mississippi 

DEB FISCHER, Nebraska 

AMY KLOBUCHAR, Minnesota 

DIANNE FEINSTEIN, California 

CHARLES E. SCHUMER, New York 

RICHARD J. DURBIN, Illinois 

TOM UDALL, New Mexico 

MARK R. WARNER, Virginia 

PATRICK J. LEAHY, Vermont 

ANGUS S. KING, JR., Maine 

CATHERINE CORTEZ MASTO, Nevada 

SHANNON HUTCHERSON HINES, Republican Staff Director 

ELIZABETH PELUSO, Democratic Staff Director 


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C O N T E N T S 

Pages 

OPENING STATEMENT OF: 

Hon. Richard Shelby, Chairman, a U.S. Senator from the State of Alabama .... 1 

Hon. Amy Klobuchar, a U.S. Senator from the State of Minnesota .................... 2 

Hon. James Lankford, a U.S. Senator from the State of Oklahoma ................... 5 

PREPARED STATEMENTS OF: 

Hon. James Lankford, a U.S. Senator from the State of Oklahoma ................... 26 

Hon. Senator Leahy, a U.S. Senator from the State of Vermont ........................ 29 

MATERIALS SUBMITTED FOR THE RECORD: 

Press release from Hon. Mitch McConnell, a U.S. Senator from the State 

of Kentucky ........................................................................................................... 31 


RULES-408278 with DISTILLER

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A RESOLUTION TO IMPROVE PROCEDURES 

FOR THE CONSIDERATION OF NOMINATIONS 

IN THE SENATE 

TUESDAY, DECEMBER 19, 2017 

UNITED STATES SENATE, COMMITTEE ON RULES AND ADMINISTRATION, Washington, DC. 

The committee met, pursuant to notice, at 2:29 p.m., in Room 

SR–301, Russell Senate Office Building, Hon. Richard C. Shelby, 

Chairman of the committee, presiding. 

Present: Senators Shelby, Alexander, Blunt, Capito, Wicker, 

Fischer, Klobuchar, Udall, Leahy, King, and Cortez Masto. 

Also Present: Senator Merkley. 

OPENING STATEMENT OF HONORABLE RICHARD SHELBY, 

CHAIRMAN, A U.S. SENATOR FROM THE STATE OF ALABAMA 

Chairman SHELBY. The hearing will come to order. Today the 

Committee on Rules and Administration will receive testimony on 

Senate Resolution 355, Improving Procedures for Consideration of 

Nominations in the U.S. Senate. 

I want to thank Senator Lankford, who is here with us at the 

table, for agreeing to appear before us today to discuss the merits 

of his resolution. 

In 2010, this committee undertook a comprehensive examination 

of the filibuster in the United States Senate. That examination was 

conducted in response to an ongoing debate about invoking the nuclear option. While no action was taken immediately following the 

conclusion of the committee’s work, the Senate did take steps in 

early 2013 to modify some of the rules and procedures for considering bills, conference reports, and certain nominations during that 

Congress. 

Later that same year, the Senate took a more drastic step and 

invoked the nuclear option for certain nominations. Invoking the 

nuclear option effected a permanent change, as my colleagues well 

know, but the other changes which improved the efficiency of the 

Senate’s operations were temporary and expired at the end of the 

113th Congress. 

Today we will revisit one aspect of those temporary changes: limiting the post-cloture debate time for certain nominations and consider whether to restore it permanently, as provided for in Senator 

Lankford’s resolution. 

Like the change enacted in 2013, this resolution proposes to reduce the current 30-hour window for post-cloture consideration of 


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certain nominations to 8 or 2 hours, depending on the type of nominee. The Lankford resolution also preserves the full amount of 

post-cloture debate time on nominations to the highest levels of the 

executive branch, the circuit courts, and the supreme court, just 

like its predecessor. 

In short, this resolution is designed to return the Senate to a 

time when it effectively and efficiently fulfilled its constitutional 

duty to confirm appointments that are necessary to the day-to-day 

functioning of our Government. 

The post-cloture debate time provided by this resolution will once 

again allow the Senate to deliberate, to debate, and to vote on 

nominees in a timely way. As was evidenced in the 113th Congress, 

this change does not inhibit members from debating or deliberating 

on the qualifications of nominees. It merely shortens what is currently an unreasonably long process. 

Admittedly, I did not support this change in the 113th Congress. 

I was concerned then that once the Senate altered the rules, there 

would be no turning back. I worried that the changes proposed at 

the time would limit each Senator’s voice and power, traits that I 

believe we have always tried to protect in this great deliberative 

institution. But I witnessed something different. Nominees, whether I supported or opposed them, were debated and voted on in a 

timely, practical manner. 

More importantly, the Senate no longer wasted countless hours 

waiting, not to hear from colleagues about the virtues or vices of 

certain nominees, not to debate their attributes or deficiencies, not 

to discuss whether they were fit or unfit for the job, just waiting 

for 30 hours of post-cloture debate time to expire. 

In 2013, the Senate was able to swiftly carry out its constitutional duties, and we witnessed a timely filling of judicial and executive branch vacancies. Reducing the post-cloture debate time in 

2013 allowed the Senate to stop waiting and start acting. 

That is exactly what I believe we need today. The American people are frustrated with Washington gridlock. They believe that we 

cannot get even the simplest of things done. We need to fix this. 

We need to restore the process to what it once was, and I believe 

this is an opportunity to do this. 

I look forward to the testimony today and the debate that follows 

in support of this resolution. 

Senator Klobuchar. 

OPENING STATEMENT OF HONORABLE AMY KLOBUCHAR, A 

UNITED STATES SENATOR FROM THE STATE OF MINNESOTA 

Senator KLOBUCHAR. Thank you very much, Mr. Chairman, and 

thank you to all the members that are here. Thank you to Senator 

Lankford for appearing before us, and I want to thank him for his 

heartfelt desire to make the Senate work better, and also two of 

my colleagues that are here, and that is Senator Udall, who is a 

member of this committee and has long worked on this issue, as 

well as Senator Merkley, who is a visiting member today, and 

thank him for his work. The three of us, along with a few other 

people, Senator Shaheen and others, have worked on this issue the 

last time that we saw some changes. In fact, when I first got to the 

Senate, our first bill that we introduced, our new class back in 


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2006, was devoted to something related to this, which was ethics 

reform, which made some significant changes to lobbying rules as 

well as gift rules and other things. Then we went on to support in 

2010 an end to the secret holds, and, obviously, this committee and 

members of this committee are now looking at changes to the sexual harassment policies that are in place in the Senate, and just 

recently with the Chairman’s help passed a law—a rule change 

that requires mandatory sexual harassment training. 

There has been work year after year on these issues, and I thank 

Senator Lankford for bringing this to our attention. As you will see 

from my remarks, I just feel that this is not the right moment to 

make these changes to the rule, and I will explain. 

Many people refer to the Senate as ‘‘the world’s greatest deliberative body’’ because the Senate is an institution which is designed 

for the careful consideration and debate of proposed laws and nominations. How we deliberate, as I mentioned, is governed by Senate 

rules, and only once in the history of the cloture process has the 

Senate voted to permanently reduce the time we have to debate an 

issue. That happened back—I am looking at Senator Alexander, 

who is an expert on this. That happened back in 1986 when we 

went from 100 hours of post-cloture debate time to the current rule 

of 30 hours. The resolution we are considering today asks us to 

make a second permanent change. 

As Senator Lankford notes in his written testimony, following 

years of failing to get nominees confirmed, the Senate voted 78–16 

to temporarily change the rules on post-cloture debate time in 

2013. But it is important to note that back in 2013, the circumstances were very different than they are today. Nominations 

required a 60-vote threshold back then. The blue slip process for 

judicial nominees was respected, and a thorough process to select 

qualified judicial nominees was in place. 

Despite all of this, important Federal positions remained unfilled 

even though qualified nominees were waiting to be confirmed. To 

address this issue back then, a bipartisan super-majority of the 

Senate supported a temporary change to the rules. Where are we 

today? 

Well, first, the reality is that nominees are getting confirmed. On 

Thursday, just this last Thursday, Leader McConnell highlighted 

the fact that, and I quote, ‘‘Senate Republicans are closing in on 

the record for the most circuit court appointments in a President’s 

first year in office.’’ Mr. Chairman, without objection, I ask that the 

press release provided by Senator McConnell’s office on December 

14th of 2017 be entered into the hearing record. 

Chairman SHELBY. Without objection. 

[The press release was submitted for the record.] 

Senator KLOBUCHAR. Thank you. The title reads, ‘‘Judicial Appointments Are The Sleeper Story That Matters. Circuit Courts: ‘A 

Dozen Trump Appointees . . . In His First Year In The White 

House.’ ’’ 

President Trump has, in fact, successfully appointed 12 circuit 

court judges, more than any other President in the first year of office since the Federal appellate courts were established 126 years 

ago. In addition to my service on this committee, I also serve on 

the Judiciary Committee, which I have seen firsthand the process 


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and pace at which these nominees are being processed. President 

Trump will have 19 judges confirmed in the first year of his Presidency compared to just 13 for President Obama in the same time 

period. In the Judiciary Committee, we have reported 44 judicial 

nominees to the Senate floor already this year. But in President 

Obama’s first year in office, we reported only 23 nominees out of 

committee. The committee also reported just 32 nominees in the 

first year of President Bush’s term and 28 in the first year of President Clinton’s compared to the 44 we have seen this year. 

It is also instructive to look at the end of President Obama’s 

term when just 22 judicial nominees were confirmed in his last 2 

years in office. That is the fewest in a Congress since Harry Truman was President. 

When you look at the facts, it is clear that, as my Republican colleagues have acknowledged, the current Congress is on track for a 

record-breaking year of advancing judicial nominees, and it is unnecessary at this moment to change the rules of the Senate. As I 

have told Senator Lankford, this is something we could consider 

perhaps before a new president comes into office. But now, when 

nominees are moving through the process, with many in a purely 

partisan manner, this change would only add to the partisan atmosphere. 

The danger involved in reducing the debate time to expedite the 

confirmation of nominees that we are considering was also highlighted by Louisiana Republican Senator Kennedy last week during 

a Judiciary Committee hearing. I was at that hearing. Many people 

have seen the video of Senator Kennedy asking Matthew Petersen, 

a nominee to be a district court judge, basic legal questions. Petersen was unable to answer any of them. Yesterday Mr. Petersen 

withdrew his nomination. Last week, the administration also withdrew the nominations of Jeff Mateer and Brett Talley at Chairman 

Grassley’s urging. They are just 3 of the 18 nominees that have 

been withdrawn this year, and those nominees were withdrawn 

after the committee process. 

These nominees and others demonstrate the importance of careful consideration of nominees for executive branch positions and 

lifetime appointments to the bench. I will also note that the American Bar Association has now rated 4 of the 56 judicial nominees 

put forward by the Trump administration as ‘‘Not Qualified,’’ including 2 who received that rating unanimously. That is fairly unprecedented given the fact that before this year, the ABA had only 

issued that rating twice since 1989, and we have seen two more of 

these ratings this year already. 

The American people deserve qualified judges who will interpret 

the law fairly, and the best way to get judges who are fair and impartial is to have a solid evaluation and confirmation process on 

where the executive branch is collaborating with the Senate and we 

have ample time to review and debate these nominees. 

At a time when we have seen unprecedented challenges to the 

judiciary and to the rule of law, we need appropriate checks to ensure the selection of qualified nominees to both the executive and 

judicial branch now more than ever. 

Before we turn to Senator Lankford, I would like to note that I 

am glad we are having a hearing in this committee. I hope we will 


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have more, Mr. Chairman, next year. I also appreciate Senator 

Lankford’s work with me on the state election infrastructure issue, 

something that has exciting developments there and it would be a 

great topic for a hearing. I just thought I would put in that plug. 

With that, thank you very much, Mr. Chairman. 

Chairman SHELBY. Senator Lankford, your written testimony 

will be made part of the hearing record, as you know. You proceed 

as you wish. 

STATEMENT OF HONORABLE JAMES LANKFORD, A UNITED 

STATES SENATOR FROM THE STATE OF OKLAHOMA 

Senator LANKFORD. Thank you, Mr. Chairman and Ranking 

Member, friends and colleagues. I anticipate this to be dialogue. I 

do not think a single one of us thinks that things are going swimmingly. We are not engaging on the issues. 

We do consume a tremendous amount of time, not in 30 hours 

of debate but in 30 hours of silence on the Senate floor, with occasionally someone to step up and speak on something unrelated to 

the 30 hours of debate on the floor for that nominee. 

This is not so much a debate about if only we had 30 hours of 

debate, we would get so many facts out on so many individuals, because we are really not debating individuals. The work is done in 

the committees. The work is done in the back-and-forth with the 

administration. That is where it really occurs. 

The challenge is we have learned as a body that we are now either going to do nominees or we are going to do legislation, but we 

cannot do both, because if the calendar is full for a week on three 

nominations, you will never get to any legislation. We continue to 

have our constituents come to us and say, ‘‘When is the Senate 

going to vote on things?’’ We can respond, ‘‘We are,’’ on nominations. But we do not have time for nominations and legislation. 

This continues to accelerate. The issue that we are going to continue to face is the gridlock on Capitol Hill is spreading across the 

rest of Washington, and the more that you have nominees that are 

not confirmed in every agency, all of us and our constituent services folks and all of our legislative staff will tell us they are calling 

over to agencies and the agencies are saying, ‘‘We cannot give you 

an answer. There is not a Senate-confirmed person there.’’ 

As that spreads, it affects all of our constituent services; it affects 

every permit that we request; it affects every bit of the process that 

happens. The gridlock that is here is moving over there. That does 

not help us long term. 

I tried to be able to give just some basic examples of this and 

some history of it as we deal with the post-cloture debate just on 

nominations. Starting in 1949, from 1949 to 1992, there were 12 

cloture votes for nominations during that entire time period. Then 

starting in 1993, the Senate averaged around six cloture votes for 

nominations through 2004. In the 109th session, the average 

jumped to nine cloture votes for nominations for a year. Then from 

2009 to 2012, it jumped again to 13 in a year. 

In 2013, the beginning of President Obama’s second term, the 

Senate determined that something had to be done about nominations. In January 2013, the Senate passed S. Res. 15 by a vote of 

78–16, standing order just for that one session to reduce post-cloVerDate Mar 15 2010 14:28 Apr 24, 2019 Jkt 000000 PO 00000 Frm 00009 Fmt 6633 Sfmt 6633 C:\USERS\EHRULES\DOCUMENTS\28423.TXT 28423

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ture debate time for most executive branch nominees from 30 hours 

to 8 hours and reduced that to 2 hours for district court nominees. 

Under the standing order, the post-cloture debate for the Supreme 

Court Justice and Cabinet-level nominations all stayed at 30 hours. 

The standing order in 2013 was an attempt to avoid the nuclear 

option. As we know now well from history, that did not occur. The 

nuclear option was still invoked in November of that same year. 

That original, that standing order, though, remained and it functioned through the rest of 2014. We saw the operation of it. 

Now, in 2013, the Senate considered it intolerable that the Senate would have 13 to 15 cloture votes in a year on nominations. 

This year, we have had 63 cloture votes on nominations. That is 

not comparable to where we were. It is an acceleration. 

I would say to this body we all know the direction of this body. 

We have 63 cloture votes on nominations now for this President. 

When the Presidential party changes, there will be a future Democratic President; Republicans will say they did 63 to us, we will do 

120 to them. Then the next time it will be we will do 240 to them, 

as we have watched this over the last 20 years slowly go up year 

by year. I do not know how that turns around until this body determines that is going to turn around. Enough is enough. 

The rules of the Senate are not something that we can just complain about and do nothing about. The Senators control the rules 

of the Senate, and at some point we have to determine this is getting out of hand. We have to be able to solve it. 

Now, I was not here in 2013 when the nuclear option was invoked, but I have heard the stories of the frustration that was rising. My Democratic colleagues believe that Republicans were pushing it too far, and so they determined something has to be done to 

get this set. I would just say I have the sense that we are in a very 

similar position, that this can be pushed too far, and at some point 

Republicans respond, ‘‘Something has to be done.’’ For the sake of 

the future, not just this administration but for the sake of the future, we have to determine how we are going to do this and to be 

able to put this in place in a way that actually works. 

Senator Merkley is my next-door neighbor. I was probably in the 

Senate 3 weeks, and he reached out to me and said, ‘‘Can we sit 

and talk about rules? I have heard you mention some things about 

rules.’’ I sat in his office. We shared a commonality on a lot of these 

issues in the sense that we have to be able to find a way to actually 

resolve these issues, not just talk about them but figure out how 

it is going to work long term. 

Senator Merkley had a proposal to take all nominations to 2 

hours, period, except for Supreme Court nominations, to be able to 

advance those still to 30. There is not a lot of debate that happens 

on the floor anymore. Most of it happens in committee. Now with 

51 votes for all nominees, the outcome is most often certain. It is 

really determined before we ever get there. The issue is: Are we 

going to do legislation and nominations or are we only going to do 

nominations? 

As I mentioned in my written testimony, the Roosevelt term for 

the first 100 days, that can never be a marker again, because from 

here on out every president in their first 100 days will not even get 

their Cabinet in place. They will not be able to move legislation beVerDate Mar 15 2010 14:28 Apr 24, 2019 Jkt 000000 PO 00000 Frm 00010 Fmt 6633 Sfmt 6633 C:\USERS\EHRULES\DOCUMENTS\28423.TXT 28423

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cause they will not be able to get personnel, because it will be tit 

for tat from here on out. 

Losing that time period is a great loss to the American people, 

and it is unexplainable to those of us in the Senate. My proposal 

is simple. Let us take the rule that was done during that time period, in 2013, with wide bipartisan support and let us make it permanent and say this is how we are going to continue to function 

from here on out. 

I would very much appreciate the conversation on it. If there is 

a better idea to do it, I am willing to be able to take it on and to 

be able to say what can we do to be able to fix this. But the best 

idea that I had was to take one that was already done and was already agreed on and say let us make it permanent and go from 

here on out. 

With that, Mr. Chairman, I would be glad to entertain questions. 

[The prepared statement of Senator Lankford was submitted for 

the record.] 

Chairman SHELBY. Thank you. 

Senator Lankford, the Senate has confirmed approximately 260, 

it is my understanding, of the President’s civilian executive branch 

nominees. On average, it has taken the Senate 71 days to confirm 

these officials. You have probably got better data than I have. How 

do these figures compare with what the Senate has done in past 

administrations? You alluded to that already. 

Senator LANKFORD. It is the same advance you would consider. 

It took about 50 days during the Obama administration, and it 

took about 30 or 40 days during the Bush administration time and 

during the Clinton administration. We are watching that slowly 

inch up as well. 

Chairman SHELBY. You have also alluded to the impact on the 

executive branch, whether it is a Democrat or Republican. Do you 

know which departments have been hit the hardest by the current 

confirmation slowdown? What are some of the real-world implications of these vacancies? How would your proposal alleviate some 

of the staffing—— 

Senator LANKFORD. The hardest hit right now would be State 

Department and DOD. The State Department has 20, 22 or so that 

are currently pending and waiting. Of course, they have a very 

large group of those that have to go through the process. DOD has 

about 15, I believe, somewhere in there, that they are waiting on. 

The real-world implications are the things that all of us have 

seen from our constituent services. When they get a call—I can just 

give you one example. We had wildfires that were moving through 

western Oklahoma and through southern Kansas. We had a wildfire literally larger than the State of Rhode Island that was burning. Farm Services needed a confirmed individual to be able to get 

some answers back on that. We did not have a confirmed individual, so our farmers and ranchers had to wait for weeks until 

there was a confirmed individual to be able to actually answer the 

question to be able to start the process. Those farmers and ranchers were literally living off of hay that was being donated from 

other places because they could not get disaster relief aid that, 

with a confirmed individual, would have been just immediate. We 

see that with FERC. There are a lot of examples of that. 


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Chairman SHELBY. Senator, you have alluded to wasting time on 

a lot of it, just letting the clock run but no debate or anything. Cloture has become, I understand—and I have been here like all of 

you—a routine part of the confirmation process even for nominees 

that enjoy broad bipartisan support. The confirmation of David 

Nye, some of you might recall, to be a district court judge is a glaring example of this. His nomination was subject to the cloture process and extended post-cloture debate even though he was ultimately confirmed by a vote of 100–0. 

What would be the reason to force debate on a nominee that enjoys this type of support? In other words, it looks like it would be 

common sense to move these people—either party, you know? 

Senator LANKFORD. The joy of the Senate is the minority can always express their displeasure in a multitude of different ways, 

and even for an individual that you demand 30 hours of post-cloture debate, then everyone votes on them 100 to nothing would be 

a complete anomaly to the 25-years-ago Senate. That was never 

done. In fact, there were no cloture votes requested, and there had 

been the ability to be able to do that since 1949. There were none 

until 1968, and that is one that Republicans and Democrats agreed 

on together to be able to do, to be able to stop one of LBJ’s Supreme Court nomination changes. As he wanted to be able to move 

someone different into leadership, there was an agreement to try 

to shut that down. 

This was unheard of. Nominations moved by unanimous consent. 

That is how they moved. If there was a major problem, then you 

had a big issue or found a way to be able to resolve it. This has 

now become standard practice. That is why I say the rule has been 

there. The practice, though, has changed. Now our rules have to 

catch up to our practice, or nothing is going to ever change on this. 

Chairman SHELBY. Senator Lankford, your resolution would restore one of the post-cloture process changes in the Senate from the 

113th Congress. I believe that change struck the appropriate balance between preserving time for debate without needlessly delaying the inevitable confirmation of nominees. 

In your view, is there any reason the Senate should not restore 

this process change? We call it the ‘‘Reid Rule.’’ 

Senator LANKFORD. No. I think we should do it, and it is not just 

for this Congress. I know there will be debate, but it will be for the 

next one and for the next one and for the next one. If we do not 

establish a principle to be able to get out there, I can assure you, 

after the next election, when a Democratic President is elected, 

Democrats will come to Republicans and say, ‘‘Okay, now we need 

to do that rule you were talking about and you liked so much. Now 

is the time to vote for it.’’ Republicans will say, ‘‘No, not now. Now 

it is the next election. We will do it.’’ 

At some point, we just have to determine for the future this has 

to be resolved; otherwise, it never gets done. 

Chairman SHELBY. Senator Klobuchar. 

Senator KLOBUCHAR. Thank you very much, Mr. Chairman. I appreciate that last thought, and I hope that could happen. But our 

issue is right now that we are in this reality, and the reality is that 

the Majority leader has just put out a press released talking about 

all they have got in a record—the administration has got a record 


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number of judges through. We have had a number of judges withdraw because they were clearly unqualified, and we have had a Republican Senator cross-examine a judge who was clearly unqualified and whereas you have noted at this partisan time. If we were 

to move forward on this with this proposal, which would not meet 

the 60-vote threshold, I believe, because of the fact that it is viewed 

as partisan as opposed to a bipartisan effort that maybe could have 

been worked up in a different way. 

The other thing that I think we have not talked about and I did 

not mention in my opening is that we have invoked cloture for 64 

nominees, and for 54 of them we used 8 or fewer hours of post-cloture debate. I just think that we should realize that some of the 

issue with these positions not being filled, which I hope you will 

acknowledge, Senator Lankford, is that people were not being nominated on the executive branch side, particularly in places like the 

State Department; and that when you look at the real facts here, 

for 54 of the 64, it was 8 or fewer hours. I wondered if you would 

respond to that practical argument. 

Senator LANKFORD. Sure, and I would be glad to. Even 54 would 

be—that is a larger number of requests even for a cloture vote than 

the last four Congresses combined—not years but last four Congresses combined. To even request a cloture vote—this was done by 

unanimous consent—to know this is going to move, so why slow 

down the process and demand additional hours for post-cloture. 

Even that shows the radical change that has really occurred in the 

shift in time. As far as the nominees that are three nominees or 

several that the administration has brought up, went through the 

committee process, and then were set aside, that happened even 

before they got to the floor, and I think that will continue to happen, and I would assume that would happen regardless of who the 

President is. They are going to put some people up that are not 

going to perform well, that Senators from both parties should step 

back and say our advice and consent is no, and to do that in the 

committee process. 

I do not know of any of those that were addressed once they got 

to the floor. Once they get to the floor, there may be 30 hours of 

debate or 8 hours or 2 hours, but most of the time, as I can recall— 

and maybe somebody can correct me—once they got to the floor, it 

was done. Catching them happened in the committee process. 

Senator KLOBUCHAR. I just think back to some of the efforts that 

have been made earlier, especially the one I know Senator Collins 

was involved in trying to—and I am not remembering the Democrat, but to try to limit the number of people who were confirmable 

by the Senate and made some changes so that it would take effect 

into the next administration regardless of who the President was. 

To me, those efforts were bipartisan, and I know you have been 

talking to our colleagues, but—— 

Senator LANKFORD. I would have no issue with that. 

Senator KLOBUCHAR. Okay. You compare your resolution—the 

last question here—to one passed in 2013, and as we discussed, 

that was temporary, and it was at a time when we had a 60-vote 

threshold. As I see Senator Leahy here, from a Judiciary Committee standpoint most significantly, that was at a time when the 

blue slip process still applied for circuit court nominees, and that 


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has now been changed for circuit court but not for district or U.S. 

Attorney. 

To me, it seems like there were other protections in place at that 

time, and while I would agree with you that time is not our favorite protection—that is why I have worked with Senators Merkley 

and Udall in the past. As you see these protections that we have 

had in the past going away, it makes you not want to make these 

changes right now. That is why I would like you to discuss that, 

acknowledge why we would want to move on this now if you are 

on our side of the aisle. 

Senator LANKFORD. I would be glad to on that. The only portion 

of the 2013 proposal is the sunset that has experienced a change 

on this at all. I literally took the exact same language as 2013, removed the sunset, and said this becomes permanent. My request 

is to make it a standing order, which would require 60 votes and 

make it a permanent standing order without any sunset date on it. 

That is the request, and that is why I said let us take the exact 

language. 

I do understand it has changed from 60 votes to 50 votes. That 

was done in a nontraditional way. I understand the world changed, 

but the world radically changed in November of 2013, regardless of 

what we are doing with this. That protection lost—the issue about 

the 60 votes or 50 votes, I was not here at the time in the Senate, 

but that was one of the long-term consequences regardless of what 

is done. You lose some of those protections in the process. The time 

is there. 

The blue slip issue is, quite frankly, a great conversation piece. 

That is something that Senator Leahy has handled as Chairman of 

the Judiciary, very different than most of his colleagues that were 

Senate Judiciary Chairmen for the last 100 years. As you look at 

the last 100 years in the Senate Judiciary Committee, most of 

them did not treat the blue slip the same way Senator Leahy did. 

Senator Kennedy did not. Senator Biden did not. Senator Hatch did 

not. Senator Grassley does not. They have handled it in different 

ways. But that is a Senate tradition to be able to establish whether 

this is consent that happens or it is a locked-in requirement that 

you have to be able to get that blue slip back and forth. 

I look forward to the ongoing—— 

Senator KLOBUCHAR. You can tell Senator Leahy wants to jump 

in at this moment. 

Senator LANKFORD. I am eager to be able to have that conversation. I would say that he handled that in a way that was consistent 

both with a Republican and a Democrat President, to his credit on 

that, exactly the same way on how the blue slip process would be 

handled, but it was different than other predecessors in exactly the 

way they actually applied it in that as a single tradition. 

Chairman SHELBY. Senator Blunt. 

Senator BLUNT. Thank you, Chairman. 

You know, the elimination, obviously, of the 60-vote protection, 

except for the Supreme Court, was done by a Congress controlled 

by Democrats. The blue slip, I think even Senator Hatch—I will be 

interested to hear what Senator Leahy has to say about this. I 

think Senator Hatch—the blue slip has not been at all consistent, 

but what has been most inconsistent was using the debate time as 


RULES-408278 with DISTILLER
11 

a clear delaying tactic. Nobody is opposed to 30 hours of debate 

time if there was actually 30 hours of debate. It has already been 

mentioned the 100–0 vote after 30 hours of no discussion at all. I 

know there was earlier a 98–2 vote, and there was 20 minutes of 

debate about the nominee, and it was 20 minutes for the nominee. 

Certainly we could eventually get these people confirmed if we do 

not do anything else. But it is clear that this is being used to slow 

down the other work of the Senate and for no other purpose. 

You said, Senator Lankford, that there have been—let me see if 

I have got this right. I think you said there have been 63 cloture 

motions this year. I looked at this in October, and if I recall the 

mid-October number right, there had been 47 this year. At the 

same time for President Obama, there had been three. For President Bush there had been one. For President Clinton there had 

been one. For President Bush 43 there had been zero. The previous 

four Presidents, there had been five cloture motions by that time 

in October. The 47 this time, is the debate more strenuous on these 

nominees this time, Senator Lankford? Have you looked at the debate clock and how much is actual debate and how much is just 

time spent on other things? 

Senator LANKFORD. With some rare exceptions, obviously, with 

some very heated Cabinet officials, this rule that I am proposing 

would not change those a bit. They would still be 30 hours for 

those individuals. For the other individuals, the debate clock was 

rarely used. Sometimes, as you mentioned, as short as 20 minutes, 

and usually those were the two Senators from that state that were 

actually coming to speak well of the individual from their state, 

and then otherwise the C–SPAN cameras rolled with riveting silence during that time period. That is an issue for us. 

A practical example of that is Judge Scott Palk from my state. 

Judge Palk was one of those that required extended cloture time. 

Scott Palk had been nominated by President Obama as a district 

court judge, was renominated by President Trump as a district 

court judge, still required a cloture vote to be able to go through 

the process and extended debate, and I recall only Senator Inhofe 

and I actually spoke about him on the floor when the actual extended debate time was required. When he arrived at his desk, he 

was handed 125 backlog cases that hit his desk the same day that 

he got there. This has real-world consequences the more that this 

slows down the process. 

Senator BLUNT. Is one of the consequences that we cannot get to 

other work during this 47 or 63 times 30 hours that we would 

use—— 

Senator LANKFORD. When you are post-cloture, you cannot bring 

up other things, as this body knows extremely well. As I mentioned 

before, we can either do nominations or legislation, but the Senate 

cannot walk and chew gum at the same time. We can only do one 

thing at a time. If we have extended debate and required post-cloture, if that is going to be the vehicle that will do it, that will permanently block any legislation from being done because we have to 

do personnel as well as legislation. 

Senator BLUNT. The large percentage of this President’s firstyear appointments, while we are not done with this yet, if you 


RULES-408278 with DISTILLER
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wanted to do this in a way that only dramatically affected the next 

President, the first year of this Presidency is gone. 

Senator LANKFORD. Right. 

Senator BLUNT. The next first year of a Presidency is for whoever 

is the next President. We could spend a lot of time, I guess, getting 

upset with each other about this year, but we are about to get to 

the point where this will no longer have eaten up the first year of 

a Presidency. By most standards, the most productive time in a 

Presidency is the first year. That one is gone, and it is gone with 

63 times 30 hours of time spent on nominations that, with a handful of exceptions, there was no debate. We ought to be talking 

about the first year of the next President, no matter who that is, 

or the next Presidency, no matter who that is. This is as good a 

time as any to do that. The first year is gone. The nominations that 

have come up in the last 3 years are not nearly as consequential 

or pressing, and so if you want to talk about what we are doing 

for the next President, what we would decide to do right now would 

have much more impact on the next President than this President, 

who has already lost a year of legislative time because of the delay 

that has been used for these nominations. I would like to see us 

do this for the next President, no matter who the next President 

is. 

Chairman SHELBY. Senator King. 

Senator KING. Senator Lankford, I appreciate your coming today 

and bringing this proposal forward and treating it as a dialogue because it is an important question. I just have a couple of questions 

just to understand the facts. 

My understanding is that this year, when we have had all of 

these cloture motions, very rarely have we used all the time. Most 

nominees have been 10 hours or less. Isn’t that the case? I think 

Attorney General Sessions and maybe Mr. Pruitt went over 20 

hours. 

Senator LANKFORD. Correct. Most of them have been around that 

time, but it is usually a full legislative day. While it may not have 

been 30 legislative hours, it was a full calendar day, and so that 

was a full day. For instance, a typical week on a lot of these, you 

would do three nominations in a week, maybe four or five in a 

week. But then you do not get to any legislation because while you 

are post-cloture, you cannot bring anything else up. 

Senator KING. If you are post-cloture, but the 30 hours are not 

necessarily all used. Is there another option here of saying you 

could have 30 hours, but if there is no actual debate or discussion 

after a certain grace period, nobody comes to the floor, then you 

could reduce the time based upon no debate. 

Senator LANKFORD. Sure, you could actually force the issue, and 

for any Majority Leader, they could come to the floor as soon as 

there is silence and call for the vote. 

Senator KING. That can be done under the current rule. 

Senator LANKFORD. That can be done under current rule. That 

actually dials up the volume even more, and I would assume it is 

one of the things the Majority Leader and Minority Leader can negotiate at any point, ‘‘I am not going to do that.’’ Or, ‘‘We are going 

to force people to actually be on the floor to be able to do it.’’ But 

that is something the Majority Leader and Minority Leader could 


RULES-408278 with DISTILLER
13 

do. But that forcing mechanism could be done under any expression of that. 

By the way, it is time equally divided, so let us say it is 30 hours, 

time equally divided; it is really 15 hours for the minority party, 

15 for the majority. If the majority party chooses not to exercise 

that, a 30-hour debate is really 15 hours. But that is still, obviously, a full calendar day. 

Senator KING. I take it that you would not be receptive to—or 

perhaps you would—returning—you are basically putting back into 

place what the Chairman referred to as the ‘‘Reid Rule.’’ 

Senator LANKFORD. Right. 

Senator KING. At the time that rule was accepted in January of 

2013, there was a 60-vote requirement. Would you accept returning 

to that 60-vote requirement? 

Senator LANKFORD. I would not only in the sense that that seems 

to be a genie out of the bottle at this point. Once you have crossed 

that threshold of saying 51 votes makes that decision that you can 

shift back and forth, I do not know how you undo that. Even if you 

undid it for this Congress, there would be every incentive in a future Congress just to be able to flip it so that would turn on and 

off. 

Senator KING. One other parliamentary question, and you mentioned this, that part of your motivation here is to open up more 

time for the Senate to do a variety of things. 

Senator LANKFORD. Correct. 

Senator KING. What about allowing other matters to come before 

the Senate during the post-cloture period if there is no debate upon 

the nominee, a dual track, in effect? 

Senator LANKFORD. Dual tracking is something that has been 

done by the Senate by unanimous consent before. If you have a 2, 

8, or 30, you would not necessarily need that because you could already dual track just based on the calendar, you would have postcloture. You could do, for instance, a district court judge in the 

morning at 2 hours, or you could do one that is—in the afternoon 

do one that is 8 hours and do only 4 hours used by one side and 

still do legislation in the morning. 

Senator KING. You could do a district court judge within the 30 

hours for a Cabinet nominee, for example, if the 30 hours for the 

Cabinet nominee are not being used. 

Senator LANKFORD. Right. I would think that would be appropriate only in the sense that if it is not being used, go ahead and 

bring it to the vote and get it resolved. For Cabinet, there are 

about 22 individuals that are considered Cabinet—or 21 that are 

considered Cabinet-level individuals, Supreme Court, or circuit 

court. I would think those individuals, we would use the majority 

of that 30 hours of time. That is a bigger issue. More people are 

going to be engaged. I have no issue with trying to make sure that 

those get the maximum amount of time. But for the rest, now that 

it is 51 for votes, most of the action on the floor is perfunctory or 

not used at all. 

Senator KING. Well, as you noted early in your testimony, the 

Senate traditionally has operated in a way that respects the rights 

of the minority and that it has that in its nature. If we have gone 

from 60 to 51, and if we are shortening the time, and if we are 


RULES-408278 with DISTILLER
14 

drifting away from the blue slip requirement, it seems to me we 

are moving very rapidly toward a majority only. You know, one 

possibility would be to take your recommendation and say it will 

be in rules on January 1st of 2021. In other words, none of us know 

who the President is going to be, who the majority is going to be, 

and then we would be able to consider it more in the abstract than 

in the present-day political situation. 

Senator LANKFORD. Quite frankly, there were several budget proposals and such that I made, and counterproposals that I made a 

year ago to try to—and this was one of them, to say we should do 

this now before this election. I did not have a lot of my Democratic 

colleagues that wanted to engage at that point as well, even when 

it was unknown who the next person would be. I think there is no 

easy moment to do it. If you set it in place at any moment, it will 

be a challenge because someone on either base is going to scream 

you are giving away your ability to enforce leverage. 

What I am trying to do is to be able to get the Senate back regardless of who is President, regardless who is in the majority or 

minority, to be able to operate. The nominations process, starting 

with the nuclear option that happened in 2013, that November, 

and then again the nuclear option again being exercised on the Supreme Court, the nominations process has dramatically changed, 

and the rules have not caught up to that operation. 

Senator KING. Thank you. 

Thank you, Mr. Chairman. 

Chairman SHELBY. Senator Alexander. 

Senator ALEXANDER. Thank you, Mr. Chairman. 

I would like to continue the tone of the dialogue between Senator 

Lankford and Senator King but make this statement: After the 

1980 elections, Democratic Senator Robert C. Byrd suddenly became the Minority Leader, and Republican Howard Baker became 

the Majority Leader. Baker went to Byrd and said, ‘‘Bob, I will 

never know the rules as well as you do. I will make a deal with 

you. I will not surprise you if you will not surprise me.’’ Byrd said, 

‘‘Let me think about it.’’ 

[Laughter.] 

The next day, Byrd said yes and they managed the Senate for 

4 years together. I have heard Senator Leahy say it was one of the 

best, if not the best, functioning of the Senate that he has seen. 

That is what we are talking about today, functioning as an institution, making the Senate work. We claim the Senate is unique, 

but that is only true if it works. Senator Lankford’s proposal is 

modest because it would reinstate a bipartisan standing order that 

we adopted for 2 years. His proposal is important because it would 

reinstate the practice of changing our rules according to the rules. 

I hope the committee will unanimously recommend Lankford’s 

proposal to the full Senate. I want to say three things about it. 

First, it is the same proposal that was adopted 78–16 in January 

of 2013. It is true it took 60 votes then to end debate on a nomination, and later that year Democrats used the nuclear option so that 

it only took a majority vote. But that was not really a change in 

practice because throughout the Senate’s history, Presidential 

nominees were almost always approved by a majority vote. Even 

when the rules permitted it, cloture was never once used to block 


RULES-408278 with DISTILLER
15 

the nomination of a Cabinet member, never once used to block the 

nomination of a Federal district judge. The only time it was used 

with a Supreme Court Justice was 1968 with Justice Fortas, as 

was mentioned, and never used for circuit judges until Democrats 

blocked nominees of George W. Bush in 2003. The point is the custom has always been that Presidential nominations are decided by 

a majority vote. By custom and by rule, his proposal is the same 

as the 2013 standing order. 

Second, this is an opportunity to reinstate the practice of changing the rules of the Senate according to the rules—that is, 67 votes 

to change a rule, 60 to pass a new standing order. Each party has 

demonstrated that we know how to do it the wrong way. The problem with that, as Senator Levin once said, is that a Senate in 

which a majority can change the rules anytime it wants is a Senate 

without rules. Continuing to ignore the rules will lead to ending 

the filibuster on legislation and destroy the uniqueness of the Senate. In Senator Byrd’s last speech right here before this committee 

in 2010, he implored us, ‘‘Never, ever, ever get rid of the filibuster. 

It is,’’ he said, ‘‘the guardian of minority rights and an essential engine for consensus.’’ 

Third, the Senate needs a change in behavior more than a 

change in rules. We changed the rules in 2012 and 2013 to make 

it easier for President Obama and his successors. I spent a lot of 

time on that, as had many others. We eliminated secret holds, required 72 hours to review legislation, made 373 nominations privileged, eliminated confirmation of 163 major positions, eliminated 

the need to confirm 3,163 noncontroversial positions. We did all 

that. We adopted several measures to speed up the motion to proceed and shorten post-cloture debate. Still, the nuclear option has 

been used twice since then. I would say that on November 21st, 

when we used it, there were 20 judges and 56 executive nominations pending, only 4 more than 60 days. Twice as many are pending today, 24 more than 60 days. Conditions are worse today than 

when the Democrats said we needed to use the nuclear option. 

The change in behavior we need boils down to one word: restraint. Senators Baker and Byrd were successful because Senators 

did not insist on using every right and prerogative. Motions to proceed and unanimous consent requests were routinely granted. Senators did not block other Senators’ amendments. They simply voted 

no. Presidential nominations were almost never blocked by requiring a cloture vote. 

Last summer, a Supreme Court Justice was asked how Justices 

are able to get along when they have such different philosophies 

in such controversial issues. I was listening at the time. The Justice’s reply was, ‘‘Each of us tries to remember that the Constitution and the institution are more important than our own opinion.’’ 

Senator Lankford’s proposal is an opportunity to demonstrate 

that United States Senators can remember that the institution is 

more important than our own opinions. I hope we will unanimously 

recommend his proposal to the full Senate. 

Thank you. 

Chairman SHELBY. Senator Cortez Masto. 

Senator CORTEZ MASTO. Thank you, Mr. Chair. Thank you for 

having this hearing. Senator Lankford, let me say thank you for 


RULES-408278 with DISTILLER
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bringing this forward. As a new Member to the Senate, I appreciate this discussion and look forward to further discussion. I am 

not sure I am completely behind the language that you have but 

look forward to further discussion on the concept. 

Let me just start with that. As a new Member—and you talked 

a little bit about Justice Scott Palk and the fact that he had come 

before the Senate before, so why wasn’t it quicker? Well, I was not 

here then, and I think for purposes of new Senators, this is all new 

to us as well. I would not like to see a quick process moving 

through, particularly as an attorney who cares about the judiciary 

and what happens on it. I am not on the Judiciary Committee but 

would like the time to properly vet these individuals. I think for 

purposes of moving forward for new Senators, we want to give 

them that authority as well, and just because they are not here to 

vote previously, that would be my concern. I would be curious, your 

thoughts on how we address that. 

Senator LANKFORD. Sure. There are several things in that. One 

is obviously they get vetted in the committee process. It is well 

known when they go on the calendar, staff has the opportunity to 

be able to pull and say these are potentials that are coming up on 

the executive calendar to be able to do the vetting and the process. 

If there is a request—and, again, you go back through history on 

this, 25 years ago it was extremely rare even to have one cloture 

vote on a nominee. Now we have 63, 64 just this year. In the past, 

obviously, this was able to be done. You go back, again, 20, 25 

years ago, there were even more nominees on the calendar. That 

list has been shortened, thankfully, and it needs to be shortened 

some more. That is an opportunity. 

One thing that I had not mentioned earlier as well that is part 

of the challenge of, well, we cannot do it now because we are in 

the middle of a Presidential time. Republicans stepped across the 

aisle in 2013, met with Democrats, and voted with 78 votes at the 

beginning of President Obama’s term to say we are going to change 

this and to not do extended debate for all of this. Let us do 2, 8, 

and 30. Republicans did cross the aisle and say we understand for 

a brand-new President that is going to bring a lot of new nominees—as a second-term President, a lot of people leave after the 

end of the first term, and so that is a rush again of nominees. Republicans opened it up and said we are going to take heat from our 

own base, but the President should be able to get his nominees, 

and they worked through the process. 

Senator CORTEZ MASTO. No, and I appreciate that, absolutely. 

Are you saying also that—I think one of the concerns that I saw 

coming through as a new member is there were a number put up 

at one time, four or five in a panel, rushing those through. That 

would be another concern. Are you saying that process would still 

occur or—— 

Senator LANKFORD. That would hopefully occur because there are 

1,200 to do. 

Senator CORTEZ MASTO. Right. 

Senator LANKFORD. I think there will still be quite a few in a 

panel in a committee, and I still assume that there will be quite 

a few. But any time they move in a bloc, that is a unanimous consent agreement that everyone’s staff and every member has the opVerDate Mar 15 2010 14:28 Apr 24, 2019 Jkt 000000 PO 00000 Frm 00020 Fmt 6633 Sfmt 6633 C:\USERS\EHRULES\DOCUMENTS\28423.TXT 28423

RULES-408278 with DISTILLER
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portunity to be able to see those individuals and say, yes, I can 

sign off on this. They will move as a bloc. 

Senator CORTEZ MASTO. Right. No, and I appreciate that. For 

people, particularly for me, who may be not on those committees, 

I would want the time to be able to vet, thoroughly vet those. 

Senator LANKFORD. Sure. 

Senator CORTEZ MASTO. For the purposes of the advice and consent that I am required to do. 

Senator LANKFORD. That would not change. 

Senator CORTEZ MASTO. The next question I have, everything 

that we are talking about here today, we are talking about the 

delays particularly here in the Senate. Are you also considering the 

delays in the nominations from this administration? I have not 

heard discussion on that, and let me just say I know that traditionally in the past, Presidents have had more nominations at this 

point in time. My understanding—and this may be wrong, but 

President Trump has been historically slow in submitting nominations to the Senate; 250 out of 624 positions requiring Senate confirmation are still without a nominee. My understanding, that is 

unique compared to other Presidents at this point—— 

Senator LANKFORD. I do not know if it is unique. It is unique in 

the last 20 years, certainly. I have not gone back any farther than 

that. But I would say President Clinton, President Bush, President 

Bush, President Obama all had more nominees that the White 

House had actually put out to Congress by this point. By this point, 

I would guess somewhere around 150 fewer than President Obama 

at this point, maybe more than that, that President Trump has put 

out than President Obama. But that is still, even those that he has 

put out, fewer have moved as well. It is really a both-and on this. 

The White House owes us a lot more people to be able to put 

through the nomination process, but even if they got here, we are 

not moving them at the pace that they actually need to be moved, 

because typically they move in large blocs rather than one at a 

time, with 8 or 30 hours required for it. In the past, the Senate has 

looked at it and said as long as this person is competent to do the 

task—they may not philosophically agree with them, but they 

philosophically agree with the President, the President can pick his 

own staff. 

Senator CORTEZ MASTO. Thank you. I know my time is running 

out. The only other concern I would have is the vetting. My understanding and concern is that this particular administration has not 

engaged in proper vetting of some of these nominees, and so we 

want to take the time to make sure that vetting occurs. But let me 

just say this: I look forward to continuing the conversation on this 

along with the remarks of my colleagues on this subject as well. 

Thank you for bringing this forward. 

Senator LANKFORD. Sure. Advice and consent is our constitutional responsibility, Senator. 

Chairman SHELBY. Senator Udall. 

Senator UDALL. Chairman Shelby, thank you so much for this 

hearing, and I would like to continue on the same tone, Senator 

Lankford, and very much appreciate your sincere interest in wanting to make the Senate work better, I hope for both sides, the majority and the minority. 


RULES-408278 with DISTILLER
18 

Senator LANKFORD. Right. 

Senator UDALL. Reforming the Senate rules is something I have 

been talking about and working on since I joined the body in 2009. 

Senators Harkin, Merkley, and I, along with other members, have 

been introducing resolutions and having good bipartisan discussions for many years. 

In January 2011, we introduced a rules reform package. One provision in that package would have reduced the post-cloture time on 

nominations from 30 hours to 2 hours, with Supreme Court nominees being the only exception. Today’s hearing indicates that my 

Republican colleagues have finally agreed with this position—— 

Senator LANKFORD. If you are asking for a motion to take your 

amendment, I would second it. 

Senator UDALL. Now that—I am not. I am not. But now that the 

President is a Republican and they are in the majority. But we proposed a package of reforms that benefited both the majority and 

the minority. Today’s proposal benefits only the majority, and the 

majority is looking to rush it through without expert testimony or 

bipartisan negotiation. 

There are other key differences between then and now. When we 

made our proposal to reduce post-cloture time to 2 hours—and 

these have been mentioned several times; you have heard them— 

you still needed 60 votes to invoke cloture, which was a real restraint on everybody. Blue slips were still honored for all judicial 

nominees. The minority still had a voice in the confirmation process. That is the important part, and I think Senator Alexander 

talked about that in terms of restraint. 

That is no longer the case. A simple majority can ram through 

even the most unqualified nominees. Today’s hearing is about how 

to do it even faster. President Trump will be the first President in 

history who is able to confirm all of his nominees with a simple 

majority, and his party controls the Senate. It is pretty shocking 

that the majority is complaining about obstruction. 

Let us be clear. One of the biggest problems with this administration’s nominees is that they have proven through the Senate’s 

normal vetting process to be unqualified, even to the majority. 

There is a huge difference between conservative and unqualified. 

We expect a Republican President to appoint conservative nominees, but we do not expect unqualified nominees, and none of us 

should tolerate it. President Trump is sending the Senate judicial 

nominees who are rated ‘‘Unqualified’’ by the American Bar Association, nominees who cannot answer basic questions about the 

law, nominees to be trial judges who have never tried a case, nominees with serious conflicts of interest, nominees with no substantive experience in the position that they are being appointed 

to. 

In the campaign, President Trump said, and I quote—and this 

was something I was really looking forward to—‘‘I am going to surround’’—this is his quote: ‘‘I am going to surround myself with only 

the best and most serious people. We want top-of-the-line professionals.’’ This is yet another statement by the President that has 

been proven false. 


RULES-408278 with DISTILLER
19 

My colleagues on the other side of the aisle seem willing to abdicate our advice and consent responsibilities and just act as a rubber stamp. 

Senator Lankford, your proposal should be considered, but only 

if additional reforms are included as part of a good-faith, bipartisan 

negotiation to include the minority’s voice in the confirmation process. For years, Senator Merkley and I have advocated for what we 

call the ‘‘talking filibuster.’’ It would allow the minority to filibuster 

nominees and legislation, but only with a significant effort and 

willingness to hold the floor and continue debate. I think that is 

what you talked about. You wanted to see that vacant time be used 

or, if it was not being used, used on something else. If we are going 

to look at reforms, it should not be in a hastily scheduled hearing 

with only Senator Lankford as a witness during the last week of 

the session and when other major legislation is being considered. 

I do appreciate that the markup was postponed. I hope it is not 

rescheduled until we have had additional hearings, good-faith negotiations with the minority, and the ability to consider a variety of 

reforms from other Senators as well. Since the Republicans took 

over, the Rules Committee has been essentially dormant. In nearly 

3 years, they have had only one substantive hearing until today, 

and that was a confirmation hearing for the Library of Congress. 

When Leader Schumer chaired this committee, he took reform seriously. In 2010, we had six hearings on examining the filibuster. 

Over the course of 5 months, we heard testimony from over 26 

members; 18 members entered statements in the hearing record. 

We heard from legal experts and former parliamentarians. Senator 

Byrd provided his insights, as has been talked about here. We used 

what we learned from those hearings to draft our reform package 

in January 2010 and 2011. 

If the majority is serious about rules reform, we need bipartisan 

support. To get that support, they will need to do it the right way. 

Let us hold hearings next year and develop a package of reforms 

we can all live with, whether we are in the majority or the minority. That was always our test when we crafted our legislation. The 

resolution we are considering today fails to meet that test. Rather 

than changing the rules in the middle of a Congress, we should debate and vote on a reform package at the start of the 116th Congress, regardless of which party is in the majority. 

Senator Lankford, just one question here to you. Do you support 

additional hearings and good-faith, bipartisan negotiations to develop a reform proposal that can gain the necessary bipartisan support to actually pass the Senate? I would be happy to hear any additional thoughts you have in response. 

Senator LANKFORD. Sure. With the Chairman’s indulgence on 

this, I would have no issue obviously with additional hearings and 

conversations. When the Senate is actually meeting in a setting 

like this, when we are really talking about how do we solve things, 

we are at our best. We are at our worst when we say we are going 

to go talk on the floor, and no one is listening other than the C– 

SPAN audience, and we are not talking to each other. There are 

opportunities to be able to sit down to be able to work it out. We 

should certainly do that. 


RULES-408278 with DISTILLER
20 

This was no trick play on my part. I am a new guy that has been 

here 3 years. My focus was I can see obviously what everyone else 

can see. It is not working, and it has not been. What can be done 

to actually get us back to where we can have debate again. If all 

of our dialogue on the floor is simply about 30 hours of debate on 

a judicial nomination that is going to pass 89–11, then that is not 

really accomplishing the task that we need to do to be able to fill 

out that full legislative day. 

I remind this body that we had unlimited debate, and then it 

was limited to 100 hours later, and then it was limited to 30 hours. 

The funny part to me is: Why? In 1986, they limited it from 100 

hours to 30 hours because that is when the C–SPAN cameras 

turned on, and the Senators determined they did not want the C– 

SPAN cameras focused in on an empty chamber of 100 hours of 

post-cloture debate with no one actually on the floor. They changed 

it to 30 hours because that is the maximum amount that had ever 

been used for post-cloture debate. Even though the rule was 100, 

they dropped it to 30 thinking we will give the maximum amount 

that it is. Now we do 30 hours of debate and rarely any of it is 

used. 

We still are in the same situation. If we are going to get back 

to actually operating, I would suggest that we actually get back to 

operating and put our rules where our practice is. 

Senator UDALL. What you have said in terms of identifying the 

tit for tat I think is very, very true. I have seen this over the years, 

both in the House and in the Senate. One side pushes the envelope 

on a particular rule or procedure. The next side comes back and 

says, you know, we have to show it to them. We are now in the 

majority. I am so thankful for your enthusiasm. You have been 

here for 3 years. You are still sticking with the idea of reform. A 

lot of Senators just give up and say whatever the rules are the 

rules. I appreciate that enthusiasm and coming up with proposals, 

and I hope that we can work to do something that makes the Senate work better and makes our Government work better, and the 

ultimate result obviously is producing for the people, and that is 

what we—— 

Senator LANKFORD. I hope we can. At the end of the day, if the 

pause on this is to say, well, let us wait 3 years and we will see 

if a Democratic President is elected and then we will want to talk 

about changing the rules on that, I do not see any particular enthusiasm from Republicans to say you are right, that is the right 

moment, after we have faced all these cloture rules for 4 years, 

then to flip it and say we are not going to do that anymore. That 

is not a realistic way that is actually going to be addressed. What 

I am trying to look for is what are the realistic moments that will 

actually fix this. There are lots of messaging things to say how we 

would do it. How are we really going to fix this? 

Senator UDALL. Well, one of the parts of this that when you say 

‘‘really fix it,’’ when the rules change as I have seen them happen 

in the middle of a Congress—and we talked about the nuclear option—— 

Senator LANKFORD. Yeah, like November of 2013. 

Senator UDALL. Yeah, those kinds of—yeah, that is what I— 

those kinds of things cause a lot of bitterness, and that is why I 


RULES-408278 with DISTILLER
21 

think, you know, rather than waiting until the next President, a 

year from now we have the 116th Congress coming in. We could 

work for a year, put our proposals out there, talk about them, and 

come up with a package. 

Senator Merkley and I, in fact, have been talking about, you 

know, a year out try to get out some proposals, see if we can pull 

people together in a bipartisan way. 

Senator KLOBUCHAR [presiding]. Senator Udall—— 

Senator UDALL. Senator Klobuchar, you are back. 

Senator KLOBUCHAR. I am. I have returned. But Senators 

Lankford and Merkley may miss the vote. I thought I would let 

Senator Merkley—while he is not on the committee, he is the only 

one here right now who has not asked questions or said anything, 

so, Senator Merkley, given your work on it, if you want to quickly 

comment before you leave for the vote. 

Senator MERKLEY. Well, thank you very much, Madam Ranking 

Member. 

Senator KLOBUCHAR. You are welcome. 

Senator MERKLEY. I appreciate the chance to sit in on the conversation. The first Senate that I saw in operation was in 1976 

when I was here dropping out of college for a year to intern and 

volunteer for groups and watch how Congress worked. I had the 

chance to staff a tax reform bill that year in which there was never 

any suggestion of a super-majority needed for any amendment or 

moving to the floor, final vote. That was a very, very, very rare 

thing. In the course of these decades, we have gone from being 

what was essentially virtually always a simple-majority body to 

being a super-majority body. In the course of that, it would go from 

going the direction on almost all occasions that the majority thinks 

is the right direction to going on almost all occasions to which the 

minority thinks is the right direction. It is a very strange way and 

is not serving us well and is resulting in a lot of paralysis. 

I really appreciate that you are helping to instigate a conversation. I do hope that this committee, which, unfortunately, I do not 

serve on, will decide to bring in the many experts who have 

watched the Senate, understand what has worked, what has 

changed over time, to have a real intense dialogue about how we 

can possibly put together a set of proposals. 

The thing that Senator Udall and I have tried to do was to introduce when we were in the minority the same proposals that we introduced when we were in the majority. What we also tried to do 

was to introduce a package that would have things that benefited 

both sides so that it was not partisan, and that helped, made it 

easier to introduce it whether we were in the majority or the minority. 

I am very concerned on the nomination side about the impact on 

the pipeline of qualified individuals who want to serve, knowing 

what they have to go through. When folks come to me and say, 

‘‘Should I consider applying for or taking a position in the administration?’’ I say, ‘‘You know, is it one that requires Senate confirmation?’’ If they say yes, I say, ‘‘Well, you have got a lot to think 

about because the confirmation process has been one where you 

might sit in limbo forever.’’ That seems particularly inappropriate 

to use advice and consent as a tool to essentially conduct partisan 


RULES-408278 with DISTILLER
22 

warfare on a President, no matter who is in power and who is in 

the minority. 

I think this is a really important conversation. I encourage the 

committee to continue it. When you came in, I held over two dozen 

meetings with Republican colleagues trying to create some momentum behind consideration of a rules package. I obviously failed in 

that effort. But if we have energy from both sides of the aisle to 

engage in this, perhaps we can make this institution work a lot 

better, not just the nominating process but also the process of debating bills. 

Thank you. 

Senator LANKFORD. Thank you. I appreciate that, and I will 

make just one quick comment, and that is, people really do lose 

track of not only when there is not a Senate-confirmed individual, 

how hard that is on the agency, but how hard that is on the individual. It is not uncommon for an individual to have to quit their 

job to be able to actually go through the Senate confirmation process, and they are sitting without income. Their family is exposed 

for months and months and months as partisan bickering here goes 

back and forth on whether we are going to do nominations. That 

is not helpful to those individuals, getting future individuals, or to 

the agencies as a whole. 

Senator KLOBUCHAR. Thank you, Senator Lankford. Some of that 

other experience that I have had has been also about delay before 

they come up for a vote. As you know, it is not just the 30 hours. 

That has been my experience with the ATF nominee, who we finally got through, or some of the judges. 

Anyway, you are the only one that has not voted here, and Senator Shelby is coming back, and I know you have been willing to 

relinquish voting to stay, but there is no one left to ask you questions right now. I suppose you could leave and come back. 

Senator LANKFORD. I would love to go vote. 

Senator KLOBUCHAR. Okay. That would be a good idea. 

Senator LANKFORD. My state does expect me to vote. I would be 

glad to vote and come back, if you all would like me to be able to 

come back. I will be gone 8 minutes and do that. 

Senator KLOBUCHAR. Okay. That will be great. We will be temporarily adjourned then. Okay. Thank you. 

[Recess.] 

Chairman SHELBY [presiding]. The committee will come to order. 

Senator Alexander? 

Senator ALEXANDER. Thanks, Senator Shelby. 

I am glad to have a chance to have a little more of a dialogue 

with Senator Lankford than I did before, and I want to thank Senator Shelby for having this hearing and the staff for working on it. 

You know, I mentioned the Supreme Court Justice who I heard say 

that he gets along well with another member of the Court who has 

completely different views because they try to remember that the 

institution is more important than their own opinion. This is the 

committee that really is the custodian of the Senate as an institution, and I am glad to see the hearing. I hope the hearing leads 

to discussions. 

I was just having a little discussion with Senator Klobuchar. 

Most of us want to be part of an institution that works, and we recVerDate Mar 15 2010 14:28 Apr 24, 2019 Jkt 000000 PO 00000 Frm 00026 Fmt 6633 Sfmt 6633 C:\USERS\EHRULES\DOCUMENTS\28423.TXT 28423

RULES-408278 with DISTILLER
23 

ognize once we are here for a while that the country, fractured as 

it is, needs an institution that builds consensus, and when we are 

at our best, that is what we do. I think back in our Health, Education, and Labor Committee of fixing No Child Left Behind, 21st 

Century Cures, the so-called Alexander-Murray small health care 

bill, which we have worked out and hopefully the Senate will pass 

and the House will pass, those are real triumphs because once they 

are passed into law, nobody is trying to repeal them because so 

many of us agreed. 

Senator Lankford, I read the conditions that existed on November 21, 2013, when Senator Reid and Democrats used the so-called 

nuclear option. There were 20 judges and 56 executive nominations 

on the calendar. That is all there were. Only four of the executive 

nominations had been there more than 60 days. Maybe there is 

some sort of division between judges and executive nominations in 

terms of our ability to find a bipartisan solution here. 

Your proposal does not affect circuit judges or Supreme Court 

Justices. 

Senator LANKFORD. That is correct. 

Senator ALEXANDER. It only affects Federal district judges. There 

are 19 judges on the calendar today that Senator McConnell could 

bring up. That is about the same number there were when the 

Democrats did the nuclear option, but there are 105 executive 

nominations. That is twice as many as there were when Senator 

Reid did the nuclear option in 2013. Do you think it would help us 

come to some bipartisan rules change if we could agree to reduce 

the number of executive nominations on the calendar and continued to argue a little bit more about the judges? 

Senator LANKFORD. It would certainly help the dialogue. I am reminded of 2013 when the agreement was reached in that January 

time period to change to the 2, 8, and 30 rule, that Senator Reid 

and Senator McConnell had a colloquy back and forth on the floor 

at that point to be able to explain what was happening. At that 

time Senator Reid emphasized, though they were talking about 

times for cloture, cloture still should not be used—and his term 

was—‘‘except in extraordinary circumstances.’’ In his statement 

even the 2-hour time period should not be used except in extraordinary circumstances where there is no wide agreement. That is 

how they settled the 2013 agreement saying, hey, we are not saying each person should go through this. The fear that I have is now 

that we have done this 60-plus times this year, we have set a new 

habit. We are gaining muscle memory that every nominee, whether 

district court and widely accepted, or whether a controversial Cabinet official, we are going to still go through the cloture. That does 

not help us as a body to be able to resolve it. 

My hope would be that we can have a simple method that is put 

out there, whether you are a judicial for a lower court or whether 

you are nominee and get that established but still go back to the 

practice that we had in the past that a President is allowed to be 

able to get his staff without clogging up the calendar where you 

cannot do legislation at the same time. 

Senator ALEXANDER. Well, that is very helpful, and I would say 

to the Chairman that, you know, any agreement at all that had 

some significance that could come of your proposal that were adoptVerDate Mar 15 2010 14:28 Apr 24, 2019 Jkt 000000 PO 00000 Frm 00027 Fmt 6633 Sfmt 6633 C:\USERS\EHRULES\DOCUMENTS\28423.TXT 28423

RULES-408278 with DISTILLER
24 

ed in the regular order—that means in a bipartisan way with 60 

votes—would be helpful because at least it would show that we still 

know how to change rules the right way instead of the wrong way. 

Talking about muscle memory, that would at least be a small step 

in the right direction, and I suspect it would also encourage a 

change in behavior if we did that. Thank you very much for what you are accomplishing. 

Senator LANKFORD. Thank you. Senator Alexander, if I can make 

just one quick comment as well. Senator Merkley had mentioned 

earlier his desire to be able to see maybe some things that might 

be beneficial to the minority as well as the majority in this package. I did not have an opportunity to be able to respond to that, 

but let me just say briefly this is a nonpartisan issue. There will 

be future Democratic Presidents like there will be current Republican or future Republican Presidents. This is trying to establish a 

principle that, regardless of who is in the White House, they should 

be able to get their staff in place and to be able to do that in an 

expeditious way. Senator ALEXANDER. Well, and I worry some about what will 

happen when you have a Democratic President and a Republican 

Senate or a Republican President and a Democratic Senate. Senators have gotten into the mode of voting against Presidential 

nominees so often in a partisan way that you could foresee a situation where it was not just a slowdown of the people who a President needs to appoint. He could not get people appointed just because people would be afraid to vote for the nominee of the President of an opposite party. That is completely different than it ought 

to be and completely different than it was when I came here not 

that many years ago. Presidential nominees were routinely brought 

to the floor, and we routinely voted for them, even if we might not 

have appointed them ourselves, because we respected the fact that 

people had elected a President and he or she had a right to create 

a Government. 

Senator LANKFORD. Right. Senator ALEXANDER. Thank you very much, Senator Lankford, 

and thank you, Mr. Chairman. Thank you, Senator Klobuchar, to 

both of you, for your time and focus on this. I hope something 

comes of it. 

Chairman SHELBY. Thank you, Senator. Thank you, Senator Lankford, for your appearance today. I think 

we have had the beginning of a pretty good debate here, and we 

will see what happens now. I agree with Senator Alexander and 

our Leader, and, Senator Klobuchar, I wish we could work together 

on a bipartisan agreement that would benefit not the Democrats or 

Republicans, but would benefit the U.S. Senate and the American 

people. Senators are advised that the hearing record will remain open 

for 5 business days so that they may submit any statements or 

questions for the record. [The information referred to was submitted for the record.] 

Thank you again, Senator, for your appearance. 

Senator KLOBUCHAR. Thank you, Senator Lankford. Senator LANKFORD. Thank you for doing this. Chairman SHELBY. The committee is adjourned. [Whereupon, at 3:57 p.m., the committee was adjourned.] 


RULES-408278 with DISTILLER
(25) 

APPENDIX MATERIAL SUBMITTED 


RULES-408278 with DISTILLER
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RULES-408278 with DISTILLERInsert offset folio 1 here 28423.001

Senate Committee on Rules and Administration Full Committee Hearing to consider S.Res.355 

Tuesday,Decernber19,2017 

Chairman Shelby, Ranking Member Klobuchar, members of the Committee, thank you for the 

opportunity to appear before you today to discuss post-cloture debate time for certain executive branch 

and judicial nominees. As many of you have heard me discuss in public and private conversations over 

the past year, I believe the Senate has hit a point of gridlock and we are currently spreading our gridlock 

to the executive branch by not confirming nominations that require advice and consent. 

However, this is not the first time that this body has found itself in that position. Over the past decade, 

the Senate has slowly increased the number and frequency of cloture votes for nominations. From 1949 

to 1992, there were only 12 total cloture votes for nominations. Then, starting in the 1993, the Senate 

averaged around 6 nominations a year until through 2004. In the 109'h Session, the average jumped to 9 

a year, then in 2009-2012, the number jumped again to over 13 a year. In 2013, at the beginning of 

President Obama's second term, the Senate determined that something had to be done about 

nominations. In January of 2013, the Senate passed S.Res.15 by a vote of 78-16, a standing order to 

reduce post-cloture debate time for most executive branch nominees from 30 hours to 8 hours and 

reduce post-cloture debate time for district court nominees from 30 hours down to 2 hours. Under the 

standing order, post-cloture debate time for Supreme Court Justices and Cabinet-level nominations 

stayed at 30 hours for post-cloture debate. 

The standing order in 2013 was an attempt to avoid the nuclear option on executive branch nominations 

-and for most of the year it worked. However, in November of that year, the Senate established new 

precedent for the number of votes to invoke cloture on nominations- moving it from a three-fifths 

majority to a simple majority. For the remainder of the 113'h Congress, it only took a simple majority to 

invoke cloture and the standing order with reduced post-cloture debate time stayed in place. 
27 


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At the end of the 113'h Congress, the standing order expired, returning to the original 30 hours of postcloture debate, but the simple majority threshold to invoke cloture still remained. For that reason, we 

find ourselves in an interesting place today. 

In 2013, the Senate considered it intolerable that the Senate would have 13-15 cloture votes a year, so 

they acted. This year, we have had over 50 cloture votes on nominees. We are on a trajectory that 

frustrates the American people, the Senate and every agency. We are certainly on a course that will 

lead every future minority party to prevent any future Senate and any future President from taking any 

action in their first year. The old Roosevelt "first 100 days" focus is gone, since any new President of 

either party will now take more than 100 days just to get their cabinet selections through the Senate. To 

get a full contingency of staff, it will take over 11 years. 

Mr. Chairman, that is why I've introduced S.Res.355 to bring post-cloture debate back to where it was in 

the 113'h Congress and this time to make it permanent. It is consistent to what we have done before as 

a body and allow the Senate to move efficiently, while still ensuring every Senator's voice has the 

opportunity to be heard. These are principles that both Democrats and Republicans should be able to 

agree on- regardless of whose party is in the White House. 

Mr. Chairman, as the Senate slowly works through nominations, the business of American people gets 

delayed. When agencies have political appointee vacancies, permits are not issued, decisions are 

delayed, clarifications are stalled, and exceptions cannot be answered. Earlier this year, as FERC waited 

for several nominees to get approved, their quorum lapsed and they were unable to approve contested 

rate cases and pipelines. In Oklahoma, the Grand River Dam Authority was waiting on approval of a rule 

curve variance to keep water levels higher through the summer at a popular recreation area, which they 

were unable to receive until the nominations were approved and they had a quorum again. It sounds 
28 


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simple, but this is the real, every day effect of not being able to clear presidential appointees in a timely 

manner. 

The rules of the Senate are the responsibility of the Senators. If we cannot find a way to work together 

in a fair manner, it is our own fault. This rule change passed with bi-partisan support in a previous 

Congress- I ask why it could not pass in a bi-partisan way in this Congress. 

Mr. Chairn:an, Ranking Member Klobuchar, members of the Committee, thank you for holding this 

important hearing today and allowing me to speak to each of you on this topic. !look forward to 

working with you in the days ahead to ensure that we can honor both the rules of the Senate and 

ensure that it's working well for the American people. 
29 


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Statement of Senator Patrick Leahy (D-Vt.), 

Senate Committee on Rules and Administration 

Hearing on S.Rcs.355, to Reduce Post-Cloture Debate Time 

December 19, 2017 

Thank you, Mr. Chairman. It is unfortunate that this is the first substantive hearing of the Rules 

Committee this year. Protecting the integrity and validity of our Federal elections is squarelyand exclusively within the jurisdiction of this Committee. Despite the consensus of our 

intelligence community that Russia aggressively interfered in our 2016 elections, and almost 

certainly continues those efforts today. this Committee has failed to hold a single hearing this 

year about election integrity. That is nothing short of alarming. 

Instead, today we are having a hearing on a resolution to reduce the time afforded to the Senate 

to debate nominations, including lifetime appointments to our Federal courts. It is surprising, 

too, that this resolution rises to the top of the priority list, given that President Trump'sjudicial 

picks are racing through the Senate. President Trump has had an unprecedented number of 

nominees reported out of the Judiciary Committee and confirmed in his first year. This is starkly 

different from 2009. By this time in his presidency, President Obama had only three circuit court 

judges confirmed; President Trump has had 12, more than any other president in history. 

But the appointing president isn't the only difference between today and the past eight years. In 

the past year, Republicans have amassed virtually unchecked power to ram through President 

Trump's nominees. Republicans have done away with almost every remaining guardrail for 

quality and bipartisanship in our nominations process. For judicial nominees, Republicans have 

disregarded the important role of the ABA by denying it time to evaluate nominees and 

attempting to undermine its credibility when they disagree with an unqualified rating. 

Republicans have also routinely stacked hearing panels with multiple circuit court nominees. 

And now the Chairman of the Judiciary Committee has reversed course on his own "blue slip" 

policy, allowing President Trump's nominees to receive hearings without positive blue slips 

from home state Senators, when he did not extend the same treatment to President Obama's 

nominees. 

Now, some members here will cite a Democratic "precedent" for changing the post-cloture 

debate rules. In 2013, in a bipm1:isan vote, the Senate agreed to a resolution to reduce postcloture debate. It was good for the life of the !13th Congress, not the permanent rules change 

this resolution proposes. But let's remember all the facts, not just some of them: All ofthe other 

guardrails on the nominations process were intact at the time. Nominations were thoroughly 

vetted by both the administration and the Committees here in the Senate. We did not see judicial 

nominees advance like Brett Talley, Matthew Petersen, or Steven Grasz. And nominees were 

still snbjeet to a 60-vote threshold. For judicial nominations, including circuit nominees, cloture 

was never filed on the day in which a nomination was reported to the floor, as was the case with 

the three circuit nominees considered by the full Senate last week. 

I understand that the Republican majority wants to cry f(ml and accuse Democrats of needlessly 

holding up our confirmation process. As the Dean of the Senate, however, I want every member 

of this panel and every sitting Senator in this Congress- to know this: Having time to 
30 


RULES-408278 with DISTILLERInsert offset folio 8 here 28423.008

thoughtfully consider lifetime appointments to the Federal bench is one of the most solemn 

duties of the Senate- and one that the Constitution calls on us to fulfill. We should not 

recklessly and permanently- abandon that responsibility in the interest of partisan expediency. 

"Obstruction" has become a term thrown about in the Senate whenever unanimous consent is not 

provided. Duty is a word we hear too little. Vermonters have, time and again, given me their 

trust to not only represent Vermont values here in Washington, but to protect the centuries-old 

institutions that have protected our democracy. I oppose this resolution. We cannot abandon the 

traditions that have made the Senate, at its best, the conscience of the nation, in exchange for 

short-term political gain. 

##### 
31 


RULES-408278 with DISTILLERInsert offset folio 4 here 28423.004

ICan 

l 

Contact: 

Antonia Ferrier 202.228.NEWS 

'Judicial Appointments Are The Sleeper Story 

That Matters' 

CIRCUIT COURTS: 'A Dozen Trump Appointees ... In His First Year In The 

White House' 

"Judicial appointments are the sleeper story that matters: Tax reform and the end of year spending 

deal will consume all of Washington's oxygen until the end of the year. But quietly, a potentially far 

more important, though far less sexy story is unfolding." t:,ltJ•d:Qi:dl\;;'!lg~@D.§fll5_1illLib2 .. 2le•CP.9!J?JQryl!wl 

M~l!Jf:L~~d:QQSJJLL9J£QJii 

SEN. MITCH McCONNELL IR·KY): "Under Chairman Grassley's leadership, the Senate Judiciary Committee 

has done outstanding work to move these judicial nominees to the floor. I am grateful for his 

efforts ... " (Sen. McConnell, Floor Remarks, 1211412017) 

"Senate Republicans are set to confirm three more of President Donald Trump's appeals court picks this 

week, a push that will help set a record for the most such appointments in a president's first year in office. The 

Senate is expected to confirm Steve Grasz for the U.S. Court of Appeals for the 8th Circuit, and James Ho and Don 

Willett for the U.S. Court of Appeals for the 5th Circuit. .. That would mean at least a dozen Trump appointees 

would join the nation's appeals courts- which have the last word in all but the 100 or so cases that the 

Supreme Court decides each year- in his first year in the White House. That comes in Senate 

also confirmed Court Justice Neil Gorsuch in April." '-"-'·=''-'-"=~·-"'~"-'-'"""'~-"-'"~'-'=~co=.=•"-' 
32 


RULES-408278 with DISTILLERInsert offset folio 5 here 28423.005

"If Senate Republicans confirm Ho and Willett before Jan. 20, Trump would surpass the record held by 

former presidents John F. Richard Nixon. Both Kennedy and Nixon confirmed 11 federal 

office, according to the Federal Judicial Center" 

"Compare that to Barack Obama, who successfully appointed three 

office in 2009, as well as Justice Sonia Sotomayor." Ll'~"'-C~==·"""~""-'~"'-''""'=' 

WSJ: " ... President Trump is rapidly remaking the federal appellate and district courts, with highly 

qualified nominees who fulfill his campaign promise to pick 'constitutional conservatives."' ("Trump's 

Excellent Judges." Tire !ljiaii Street Jowf@}JQ!jj201!] 

PRESIDENT TRUMP: "Thanks to @SenateMajLdr McConnell and the @SenateGOP we are appointing high· 

quality Federal District Judges at a record clip! Our courts are rapidly changing for the 

better!" \@t§£IQQDQI;ffiYflliU.Y'!I!il1h.Jl!J:::i.Qlli 

PRESIDENT TRUMP: " ... something that people aren't talking about is how many judges we've had 

approved, whether it be the Court of Appeals, circuit judges, whether it be district judges. We have [a] 

tremendous [number], right now, under review .... I think it's one of the big unsung things of this 

administration... in the pipeline. The level of quality is extraordinary." (Presid?!lW\!Q1J1, 

SEN. MITCH MCCONNELL (R·KY): "As you've noticed, as soon as the circuit judge comes out of committee, I 

call 'em up. I'm in charge of the schedule. I gotta choose what to bring up. Confirmation of circuit court 

judges is my top priority. As they come outta the committee they will be called up." (Hugh Hewitt Show, 

11/4/2017) 

AMANDA MARCOTTE, Liberal: " ... Senate Majority Leader Mitch McConnell and Sen. Chuck Grassley, who 

chairs the Senate Judiciary Committee, have set up a factory-style assembly line for Trump's judicial 

nominees, and are getting them confirmed at a dizzyingly fast rate .... If liberals sometimes overlook the 

importance of the courts, rest assured that conservatives do not." ~=======""""'=~""-'"'-"' 
33 

Æ 


RULES-408278 with DISTILLERInsert offset folio 6 here 28423.006

"Democratic senators have used every parliamentary trick in their power to slow this particular Trump 

train .... Democrats are forcing more cloture votes than any early presidency and demanding the full 30 

hours of floor time per nominee that Senate rules allow." Lltll.I!.!Jle For GQPJ£gder§J'll!LIQ.;Stop Leilli:Jg 

QemOCJ.il\?_Siall Jusli9J§L!'l.QlJ11CcaJtQr,~., Jf:l£EQ@!9ii§LJJlL!!lL?.QEl 

SEN. DICK DURBIN ID·ILl: "Senator McConnell controls the floor schedule. If he wants to schedule more 

votes on judges, I suppose he has the power to do so. He is exercising that power by doing something that 

has never happened in the history of the Senate." (Sen. Durbin, Congressional Record, S.6886, 10/31/2017) 

"'I think it's awful fast to move,' Democratic Sen. Dianne Feinstein of <;alifonlia, the• rar1king rrrember onthe 

Senate Judiciary Committee, told 

"Nan Aron, president of the progressive Alliance for Justice, said the rush to confirm the circuit court judges 

is the 'Trump-GOP court takeover strategy in all its glory."' i:M~~QJ1nell Pic~\§. Uo Pace On Trump''LJ.lJ!jq!2, 

M.91SJ2.-I2. .. QQD.firmfourJit?~tWS?l:,~.Jhe WE.9:.~bJDtQn rtrm~UQLZQLfQJD 

PEOPLE FOR THE AMERICAN WAY: "The survival of our democracy depends on having independent courts with 

judges who protect everyone's rights and who won't let anyone trample on the Constitution. So it's no surprise that 

Donald Trump and Mitch McConnell are moving at light speed to transform our federal judiciary ... this 

situation isn't funny. He and Trump are quickly transforming the American judiciary ... " (f£}::JV Press 

Release. 101301201Z} 

Tom Mentzer 

Communications Director 

### 

SENATE REPUBLICAN COMMUNICATIONS CENTER 

202.228.NEWS 

Office of U.S. Senator Dianne Feinstein