Update on Nominations: Progress, but is a Rule Change Possible?

Recent Activity on Nominations

President Donald Trump continues to trail his predecessors in getting nominees confirmed to his administration. For those keeping track, of the 610 key positions requiring Senate confirmation, only 173 positions have been filled. The president has sent an additional 170 nominations to Capitol Hill and announced seven additional nominees that have yet to be formally submitted to the Senate for consideration. The 260 remaining positions are without a nominee.

While many executive branch jobs are still vacant, we are now seeing the Senate making progress on some confirmations. For example, on Thursday, the Senate approved by voice vote Kevin McIntyre and Rich Glick to be members of the Federal Energy Regulatory Commission (FERC). The Senate also approved Paul Dabbar to be undersecretary for science and Mark Menezes to be undersecretary of energy. Additionally, five new federal judges were confirmed this week: Amy Barrett, Joan Larsen, Allison Eid, Stephanos Bibas, and Trevor McFadden.

Earlier this year, it seemed that delays in the nominations process were due, in part, to the slowness of the White House to attract, vet, and name nominees. While the current numbers indicate the White House is moving forward, it is now taking the Trump Administration 26 days longer (up from 19 days just two months ago) than the average time it took the Obama, Bush, and Clinton administrations to confirm their nominees for various executive branch roles. Much of this has to do with procedural tactics Senate Democrats have employed to hold up nominees.

As Senate Majority Leader Mitch McConnell (R-KY) tries to bring additional nominations to the floor, we see a number of nominations where Democrats may continue to object to unanimous consent, resulting in Republicans having no choice but to burn floor time by running the clock for 30 hours of post-cloture debate. Could building GOP frustration open the door to a rule change that would limit Democrats’ ability to slow down the confirmation process?

Is a Rule Change Possible?

By way of background, in November 2013, Senate Democrats changed the application of the cloture rule to nominations by eliminating the filibuster for lower court judges and executive nominees. In April, at the peak of the debate over Neil Gorsuch’s Supreme Court nomination, Senate Republicans triggered the “nuclear option,” eliminating the filibuster for Supreme Court nominees. In response, Minority Leader Chuck Schumer (D-NY) accused Republicans of escalating partisanship, and since then, Democrats have forced cloture on 51 of President Trump’s nominees.

While it has been rumored for months that Republicans are privately talking about changing Senate rules to limit the time for post-cloture debate on nominees, this week Majority Leader McConnell seemed to give the first public impression that such change could be possible. Reacting to the growing fight with Democrats over the confirmation of judicial nominees to lifetime appointments, Majority Leader McConnell reaffirmed his commitment to the filibuster for legislation, but expressed openness to altering the rules to mitigate Democrats’ ability to drag out confirmations.

One idea that seems to be gaining traction is Senator Lankford’s (R-OK) proposal to reduce the amount of debate time required post-cloture from the current 30 hours down to eight hours. While Senator Lankford offered a similar proposal at the time of the Gorsuch debate, the concept of limiting debate for most nominations was also on the table when Democrats sought to mitigate Republican obstruction on President Barack Obama’s nominees in 2013.

Prominent Republicans have already come out in support of changing the Senate rules to help expedite the confirmation of Trump nominees. Some members of the GOP leadership, including Senators John Barrasso (R-WY) and Roy Blunt (R-MO), have already offered their support. Senator John Cornyn (R-TX), also a member of GOP leadership, has advocated for regular order, but acknowledged change may be needed if Democrats remain uncooperative.

Unsurprisingly, Democrats are not keen on any additional changes to Senate rules. Minority Leader Schumer was quick to point out that President Trump already has more judges confirmed to the federal bench than President Obama did at this point in his presidency, despite the GOP’s complaints regarding the slow pace of confirmations. Minority Leader Schumer also accused Republicans of flip-flopping after they too sought to use Senate rules to slow down Obama nominees.

It remains unclear if and when Republicans may force a vote on a rule change. However, should Republicans decide to pursue a rule change, it is likely they would once again have to “go nuclear,” changing the rules by a simple majority. Otherwise, a rules change would require the support of at least 15 Democrats for a two thirds majority, which at this point, does not seem achievable.

Potential Action in the Pipeline

Regardless of whether or not the rules change, we see Republican Senate leadership continuing its efforts to try to advance nominees in the coming weeks, even if it means burning the clock on the Senate floor.

Last week, Majority Leader Mitch McConnell filed cloture on the nomination of Steven Engel to be Assistant Attorney General. The Senate is expected to vote on his nomination on Tuesday. A vote has also been scheduled on John Gibson’s nomination to serve as deputy chief management officer of the Department of Defense (DoD). Further, Majority Leader McConnell filed cloture on William Wehrum’s nomination to lead the Environmental Protection Agency’s (EPA) Office of Air and Radiation, Peter Robb’s nomination to become general counsel of the National Labor Relations Board (NLRB), and Derek Kan’s nomination to serve as undersecretary of policy at the Department of Transportation (DOT).

The Senate is also expected to act quickly on Kirstjen Nielsen’s nomination to serve as Secretary of Homeland Security. The Senate Homeland Security and Governmental Affairs Committee will hold a confirmation hearing for Nielsen this Wednesday, November 8th. Similarly, swift action is also expected by the Health, Education, Labor, and Pensions (HELP) Committee as soon as a nominee for Health and Human Services (HHS) Secretary is named.

Finally, if past is precedent, we could see another nominations package at some point this year. As a reminder, the Senate approved a package of 65 nominees by a voice vote on its last day in session before the August recess. While the timing for a second nominations package is unknown, it could be a ripe item to fill the agenda as deliberations continue on tax reform and Fiscal Year (FY) 18 appropriations.