The Republican Case for Changing the Senate's Rules is Misleading

In making their case to change the Senate’s rules to speed up the confirmation process, Republicans conveniently omit the fact that they too once acted to slow it down. Also, the cloture statistics Republicans cite to justify their use of the nuclear option are misleading.

Past Behavior

Majority Leader Mitch McConnell, R-Ky., recently claimed that “for the first time in memory, a minority has exploited procedure to systematically obstruct a president from staffing up his administration.” However, Republicans similarly slowed the confirmation process for President Obama’s nominees after Democrats used the nuclear option in November 2013 to reduce the required number of votes to invoke cloture from a three-fifths majority to a simple majority. 

In retaliation, Republicans refused to schedule confirmation votes by unanimous consent. They also insisted on more recorded confirmation votes than they did in the period before Democrats went nuclear. For example, the Senate confirmed 379 civilian, non-list nominees between November 22, 2013 (the day after the Democrats went nuclear), and the end of the 113th Congress,. Of those, 121 were confirmed by recorded vote, and 258 were confirmed by voice vote.  

In response, Democrats filed cloture on nominations to speed up the confirmation process. Specifically, they filed cloture on 150 nominations between November 22, 2013, and the end of the 113th Congress. During that period, the Senate invoked cloture (by recorded vote) on 126 nominees. The president withdrew one nomination (Debo P. Adegbile to be assistant attorney general) after failing to get the simple majority needed to invoke cloture in the aftermath of the nuclear option.

Misleading Statistics

Over 13 months, the Senate held 126 cloture votes when Republicans were in the minority. In contrast, it held 128 cloture votes over 24 months in 2017 and 2018 when Democrats were in the minority. McConnell cleverly avoids drawing attention to this fact by juxtaposing “equivalent periods” during the Obama and Trump administrations. The problem, however, with this is that the nuclear option had not been used during the equivalent period in Obama’s term. Had Democrats already gone nuclear, Republicans’ behavior in 2013 and 2014 suggests that there would have been just as many, if not more, cloture votes during the first two years of Obama’s presidency as there were during the equivalent period in Trump’s presidency.