Reasonable people can disagree about whether Senate Majority Leader Mitch McConnell’s proposed rule change is warranted. McConnell (R-Ky.) is trying reduce the debate time required for a president’s executive-branch nominees from 30 hours to two — a move similar to what Democrats did in 2013 (with some key differences). He’s doing it to grease the skids of a gummed-up confirmation process.
But regardless of the necessity or prudence of that move, McConnell’s public case for it is … something.
In a Politico magazine op-ed on Monday, McConnell pointed to the “historic obstruction” by Democrats that necessitated the change:
Since January 2017, for the first time in memory, a minority has exploited procedure to systematically obstruct a president from staffing up his administration. This new, across-the-board obstruction is unfair to the president and, more importantly, to the American people. Left unchecked, it is guaranteed to create an unsustainable precedent that would see every future presidency of either party obstructed in the same mindless way....The all-encompassing, systematic nature of this obstruction is not part of the Senate’s important tradition of minority rights. It is a new departure from that tradition. And this break with tradition is hurting the Senate, hamstringing our duly elected president, and denying citizens the government they elected.
That sound you hear is Merrick Garland screaming again.
McConnell’s case is basically that, while Republicans might have held up a barricade against President Barack Obama’s judicial and other high-profile nominees when they were in the minority — leading Democrats to eventually invoke the “nuclear option” in 2013 — Senate Democrats changed up tactics and have now extended the practice to much more mundane nominees.
And there is evidence that Trump’s executive-branch nominees have indeed been held up longer than even Obama’s were. PolitiFact did a fact check last year and found there was credence to this claim (but also that Trump had failed to actually field a nominee for many jobs). The latest data from the Partnership for Public Service shows the average time it takes to confirm one of Trump’s civilian executive branch nominees is 105 days, as opposed to 93 under Obama.
Obstruction, it seems, is in the eye of the beholder. One man’s principled stand is another’s move to obstruct. Senate Minority Leader Charles E. Schumer (D-N.Y.) has defended the tactic by arguing that “so many” of Trump’s nominees haven’t been properly vetted and that Trump hasn’t appointed Democrats to boards and commissions that are usually bipartisan.
But setting aside the legitimacy of that debate for a moment, McConnell’s complaints about a new form of obstruction — without mentioning the events of Obama’s presidency — would seem a rather convenient omission.
People are probably familiar with the back story, but I’ll recap: When Supreme Court Justice Antonin Scalia died in February 2016, McConnell and the Republicans quickly served notice that they would not even hold hearings on a replacement until a new president had been elected. They argued that precedent was on their side by pointing to the “Biden rule.” Essentially, then-Sen. Joe Biden (D-Del.) had argued in June 1992 against holding hearings before that year’s election if there had been a Supreme Court vacancy.
Except that was in June, not February. It was also never an actual rule, but rather a suggestion from one senator (albeit a powerful one at the time, as the head of the Senate Judiciary Committee). And Biden didn’t rule out a confirmation happening in the lame-duck period after the next election. In other words, McConnell was breaking new ground, however you slice it. And it paid off because Donald Trump’s win in the presidential race meant Democrats wouldn’t be able to use the seat to tilt the court to the left.
McConnell seems to be carving out a difference here in that he’s talking about the rights of the minority party in the Senate — not the majority one, which Republicans were during the Garland situation. But both involve new forms of blocking nominees, and there’s a very real argument to be made that McConnell’s blockade of Garland was far more consequential, both for the country and for the future of the Senate.
McConnell was fully within his rights to do that, mind you, just as he is fully within his rights today to go nuclear. But when you complain about the other side engaging in “new” and “historic” obstruction when it comes to lower-tier executive-branch nominations, it’s fair to point out your own new and historic blockade of a Supreme Court nominee — as well as the role that probably played in what we’re seeing today. It poisoned the well in the Senate, in many ways, and Democrats are still fuming about it to this day.
When McConnell says Democrats are “hurting the Senate, hamstringing our duly elected president, and denying citizens the government they elected,” he’s making an argument Democrats could just as easily have made — and did — in 2016. At the time, a Democratic president whom the country had elected had a Supreme Court nominee ignored by the Senate. McConnell would argue that the GOP-controlled Senate was doing what was right and/or politically smart, but you can’t really dispute that it was a new and historic obstruction.