In the last week or so we’ve been subjected to near-constant news about President Trump’s nominees for various posts and Democrats vowing to boycott or filibuster them. It’s a lot of show business but how does it work? Why is it an issue? How does a boycott or filibuster work and how likely are they to succeed in their goal?
Why Would Someone Care About a Nominee?
The President may nominate someone to be head of a government department. Heading a government department, the nominee would have the power to shape policy within that department.
For example, if confirmed, Senator Jeff Sessions would fill the seat of Attorney General. As Attorney General, Senator Sessions would be the head of the Department of Justice. The Department of Justice controls all federal criminal cases. As a big issue right now, Attorney General Sessions would be able to choose how strictly marijuana offenses are prosecuted and whether they are prosecuted at all.
The President may also nominate people to be judges on federal courts all the way from the district courts to the Supreme Court. These judges will hear cases and render verdicts and sentences. Judges, once seated on the bench, hold their position for as long as they show “good behavior”. Violating good behavior is typically very difficult, usually involving blatant corruption or disobedience of the laws, so these appointments usually last for life.
How the Nomination-Confirmation Process Work
The President, at their will, may nominate someone to be head of a government department. If there is an opening for a judge on a federal court, the President may nominate a judge to fill the opening. There are no constitutional requirements for the qualifications of the nominee, no requirement of experience or character.
Once the President has decided upon who they would like to nominate, they present the nominee to the Senate. Under the Constitution, the nominee must be confirmed by the Senate to take the post they have been nominated for. The Senate may confirm or deny any presidential nominee for any or no reason. There is no requirement in the Constitution that the Senate must consider or even give a hearing to every one of the president’s nominees. This caveat is referred to as the “Biden Rule”. It is named after the former Senator and Vice President because he made a speech laying out this rule in 1992 when George H.W. Bush was President. It is this rule that caused the Senate to ignore Merrick Garland nomination for Supreme Court in 2016.
How Does the Senate Fight a Nominee?
As the gatekeeper to confirmation, the Senate has a variety of tools at its disposal to fight a nominee it does not wish to confirm. If the Senate largely agrees on denying the nominee they may simply vote to deny the nominee their confirmation and be done with the issue.
The issue becomes more interesting when the Senate is split on whether to confirm a nominee. Both sides have the option of employing the filibuster or calling a boycott. Although either side can employ either strategy, it is usually the side that believes they would lose a vote who will employ the strategies.
What is a Filibuster? How Does It Work? How Successful is it?
Senate rules say that as long as a Senator speaks on the floor, debate will continue and any votes will be delayed. If a Senator does this with the intent that a vote will never be allowed, it is called a “filibuster”. The only way to force a vote once a filibuster is in motion is to call for “cloture”. Cloture is the ending of debate on a topic. Traditionally, to get cloture, the vote for cloture must get two thirds support. The difficulty in obtaining cloture is a big part of the power of the filibuster.
A filibuster can be, and is often, used on consideration of controversial nominees. Traditionally this would be a strong weapon against a nominee and would usually end up in the nomination being revoked by the President. However, in the years of Democratic control of Congress under President Obama, Senator Harry Reid became tired of Republicans using the tactic. To fix this issue the Senate voted, largely based on party allegiance, to allow for cloture with only a majority vote when it comes to non-Supreme Court nominees. This means that if a Democrat sought to filibuster President Trump’s department nominees the filibuster could be defeated easily.
The filibuster used to be a strong way to stop a nominee until the latest rule change. A filibuster may be a strong tactic against President Trump’s nomination of Neil Gorsuch for the Supreme Court but it will likely not hold against any of President Trump’s nominations for government departments.
How Does a Senate Boycott Work? How Successful is it?
A Senate boycott works largely in the same way as a normal boycott. By sitting out of the vote, the disagreeing Senators hope to sway the thoughts of other Senators in their support.
A Senate boycott also works through Senate procedure. A vote in the senate requires that over 50% of the Senators be present for the vote, this is called having a “quorum”. Votes in the Senate can, and do, go through without meeting this requirement. However, if this requirement is called to the Senate’s attention, called a “quorum call”, then the Senate may not vote until 50% or more of the Senators are present.
A Senate boycott may be successful in stopping President Trump’s nominees. First, it brings lots of publicity to the issue and may help persuade some Republicans to side with Democrats. Second, if the boycott is large enough then a quorum call could forbid a vote from being taken on the nominee.
Where Does That Leave Us?
President Trump’s nominees have certainly proven to be controversial. The Senate does have a few options available to fight them but it is unclear if there is the necessary power available to fight them. Due to rule changes, the traditional filibuster will likely not stop a government department nomination. A boycott is much weaker and needs very large support to actually stop a nominee. This leaves a small group of Democrats largely powerless to stop President Trump’s nominees unless they can bring in some Republicans to their side.