This column by ACRU General Counsel Ken Klukowski was published November 19, 2017 by Breitbart.
WASHINGTON, DC—Sen. Tom Cotton (R-AR) threw down the gauntlet to Senate Democrats on Thursday, telling the Federalist Society that Democrats would either agree to reasonable conditions for confirming President Donald Trump’s nominees or “face the Senate equivalent of martial law.”
Cotton delivered the opening address to the 2017 National Lawyers Convention of the Federalist Society for Law & Public Policy, the largest and most powerful group in the nation for conservative and libertarian legal thought. The three-day conference was held last week at the Mayflower Hotel in the nation’s capital.
The junior senator from Arkansas focused his speech on changing the way the Senate does business, telling the assembled gathering of lawyers that “the confirmation of executive and judicial nominees” is “one area in which the Senate has been painfully slow in making progress.”
“And that’s all because the Senate Democrats refuse to accept the results of the 2016 election,” he added, explaining that the Democrats are using every means at their disposal to slow or derail the president’s agenda.
Appointments are key to the president’s agenda. His policy agenda must be implemented by thousands of subordinates of the various departments and agencies, which means that slowing the confirmation of nominees to high-ranking positions impedes that agenda.
But more than that, a central aspect of President Trump’s agenda is stocking the federal courts with life-tenured judges who are committed to adhering to the original public meaning of the Constitution and federal laws, so blocking confirmation of those judges completely blocks that central campaign promise the president made to the American people.
Cotton says it is the Democrats’ “own fault” that Trump’s judges are still getting through over their almost-unanimous opposition. He noted that, in 2013, to pack the D.C. Circuit federal appeals court, they reinterpreted the rules of the Senate to require only 51 votes, instead of 60, to confirm all executive branch nominees and all federal judges except Supreme Court justices.
“We used that same precedent to hoist them on their own petard this year and we confirmed Neal Gorsuch to the Supreme Court,” he said, referring to the vote to extend that 2013 precedent to include the only type of nominations not already covered by the Democrats’ earlier vote.
“So that means it takes a simple majority vote to confirm any nominee to any office in our government,” Cotton continued, adding that the 51-vote requirement was “the standard all along until just 15 years ago, when a junior senator from New York named Chuck Schumer decided it would be to the Democrats’ advantage to start filibustering George Bush’s nominees.”
But in 2017, Schumer responded as Senate minority leader by routinely taking the full 30 hours for debate allowed after a cloture vote on dozens of Trump nominees, burning hundreds of hours to slow confirmations to a crawl.
Cotton has had enough and is calling upon Senate Democrats to return to a workable standard. He suggests a maximum of “30 hours of debate for Cabinet, and Supreme Court, and Circuit Court nominees, 8 hours for all subcabinet positions, and two hours for district court nominations.”
“I’d say that’s pretty reasonable,” the senator said, noting that these are the “same reasonable terms” that Democrats were willing to abide by when dealing with a Republican minority and a Democratic president.
If they won’t agree, then Cotton argues that Republicans will eventually marshal the votes to abolish cloture votes altogether for any nominations and can go straight to floor confirmation votes with no debate whatsoever.
In other words, Cotton says that Schumer and his caucus need to meet Republicans partway “or face the Senate equivalent of martial law.”
Tensions are rapidly rising over Democrats’ unprecedented obstruction tactics. No one seems to have a reliable count of how many Republicans are willing to vote in favor of a ruling that Schumer’s tactics are “dilatory” and therefore “out of order” in the Senate, but most experts agree that the number of senators willing to invoke the next “nuclear option” is rising.