ConfirmThem

By AndrewHyman Posted in Senate Rules — Comments () / Email this page » / Leave a comment »

Today, a distinguished professor responded to my suggestion that Rule 31 provides an excellent solution to the problem of endless filibusters of nominations.

I've often argued that a good way to deal with endless filibusters of judicial nominations would be to invoke Senate Rule 31, which says this:

3. When a nomination is confirmed or rejected, any Senator voting in the majority may move for a reconsideration on the same day on which the vote was taken, or on either of the next two days of actual executive session of the Senate....

4. Nominations confirmed or rejected by the Senate shall not be returned by the Secretary to the President until the expiration of the time limited for making a motion to reconsider the same, or while a motion to reconsider is pending unless otherwise ordered by the Senate.
....
6. Nominations neither confirmed nor rejected during the session at which they are made shall not be acted upon at any succeeding session without being again made to the Senate by the President....

This rule requires a majority vote when a nomination is confirmed or rejected by the full Senate. And, I have argued that the Democrats are indeed trying to "reject" nominations by forcing them to expire at the end of the congressional session.

Here's how the above-mentioned distinguished professor responded to my suggestion:

The problem I have always had with the Rule 31 idea is that it fails to distinguish between the delay of a final vote caused by the filibuster, and the final vote specified in the Rule. There is no mandate for a final vote. There is too long a historical practice of nominations dying in committee for that to be the case.

So, I thought I'd briefly discuss here at confirmthem two reasons why I think this distinguished professor is mistaken. First, Rule 31, Section 4 clearly says that the rejection in question is "rejection by the Senate" rather than rejection by a committee. Thus, I agree that Rule 31 does not require a vote in a case where a nomination does not get out of committee to the Senate floor. Second, it is unreasonable to suggest that the "reconsideration" requirement of Rule 31, Section 3 applies to reconsideration of committee votes. In other words, Rule 31 has never been construed as imposing any reconsideration requirement whatsoever on any Senate committee, because "rejection" in Rule 31 means rejection by the full Senate rather than by committee.

Incidentally, I also believe that Rule 31 does not mandate a vote even in some situations where a nomination does get out of committee to the floor of the Senate. In particular, suppose the full Senate is preoccupied with other matters, and therefore does not get around to considering a nomination sent from committee, and subsequently that nomination lapses at the end of the congressional session; in such a case there is no "rejection" and thus no need for a vote. But, if the full Senate does consider (i.e. debate) a nomination, and pruposely puts any further consideration off until the nex congress, then Rule 31 does ordinarily require a vote before the nomination expires.

By way of analogy, suppose you apply for a job, and give the interviewer your resume. At the end of the interview, you're told that the interviewer has considered your application, but cannot offer a job at the moment, and hands you back your resume. Isn't that rejection? Of course it is.

Having said all that, I totally support any "constitutional option" that will restore majority rule to the confirmation process. It just seems like Rule 31 would be the best approach, by far. The Senate Rules would not have to be changed. There would be no issue of whether the Senate is a "continuing body." There would be no possible threat to legislative filibusters. Nomination filibusters could still occur, but they would have to end before the end of a congressional session. Thus, Rule 31 functions like various other limitations on debate (e.g. for trade agreements and budget resolutions).