Juan Williams Just Plain Wrong on Senate Rules Change on Nominations

COMMENTARY Political Process

Juan Williams Just Plain Wrong on Senate Rules Change on Nominations

Apr 10th, 2019 3 min read
COMMENTARY BY
Thomas Jipping

Deputy Director, Center for Legal and Judicial Studies

Thomas is the Deputy Director of the Edwin Meese III Center for Legal and Judicial Studies and a Senior Legal Fellow.
Williams accuses McConnell of undermining public trust in the nation’s courts, but that trust is harmed much more by wildly false claims. John Lamparski / Contributor / Getty Images

In the April 8 edition of The Hill, commentator Juan Williams made a series of claims and accusations against Senate Majority Leader Mitch McConnell that cannot be allowed to go unchallenged.

First, Williams claimed that on April 4, the Senate ditched “more than two centuries of U.S. Senate rules to reduce the time senators have to consider federal district court judges and other Trump administration nominees from 30 hours to two hours.”

The only rule Williams could be talking about is Rule 22, but it was first adopted in 1917, could not even potentially apply to nominations until it was amended in 1949, and was not used in connection with a nomination until 1968.

The change made on April 4 affected only the number of hours available for final debate after the Senate has voted to bring debate to a close and before it votes on confirmation. 

The biggest fraud in the conflict over the Senate’s action is that this final, tiny segment of a very long process is the only “time senators have to consider” a nomination. 

Take the nomination the Senate considered on April 4 itself. President Donald Trump nominated Jeffrey Kessler to be undersecretary of commerce on Nov. 2, 2017, and the Finance Committee held a hearing on June 12, 2018. On April 3, some 518 days after Kessler’s nomination, the Senate voted 95-3 to end debate and then confirmed him by voice vote, without taking a recorded vote at all.

Senators apparently paid no attention to the Kessler nomination for nearly a year and a half. No one debated, and no one opposed it. With at least 12,462 hours between Kessler’s nomination and the Senate confirmation vote, it is a mystery why Williams would complain about shortening the final 30 available hours that no one was going to use anyway.

Second, Williams claimed that McConnell, R-Ky., “also [ran] over a century of Senate tradition by ending the ‘blue slip’ practice of allowing senators to shut down nominations for the federal bench in their home state.”

The “blue slip” courtesy is a way of highlighting the views of senators about judicial nominees who would serve in their state. It operates entirely within the Judiciary Committee, completely at the prerogative of the chairman. 

With all due respect to the majority leader, McConnell has absolutely nothing to say about it.

Third, Williams claimed that “the Senate has confirmed more judges for Trump during his first two years in the White House than any other president in more than 50 years.” 

Any lowly fact-checker should have flagged this one immediately.

The Senate confirmed 85 judges during the first two years of Trump’s presidency. That number—85—is not “more” than the 100 confirmed for George W. Bush, the 128 for Bill Clinton, the 88 for Ronald Reagan, the 90 for Richard Nixon, or the 110 for John F. Kennedy.

But Williams’ error is even greater. Because Congress increases the size of the judiciary from time to time, the best measure of a president’s judicial appointments is as a percentage of the entire judiciary. By that more accurate measure, Trump appointed fewer judges in his first two years than all but two presidents since the turn of the 20th century.  

Fourth, Williams claimed that McConnell “has bragged about his success in getting 37 Trump nominees for the appellate courts confirmed in two years.”

“That is [a] far higher rate for confirmations than any previous president,” he wrote.

The Senate confirmed 30 of Trump’s appeals court nominees, not 37, in his first two years. That’s still the highest total, but not the highest percentage, for a new president. Trump appointed 16.8 percent of the U.S. Court of Appeals judges in his first two years, but Nixon appointed 20.6 percent and Kennedy appointed 21.8 percent.

 So, even that Williams’ claim falls flat.

Fifth, Williams claims that McConnell used the old rules to set a record for obstruction by blocking 79 of President Barack Obama’s nominees in Obama’s first five years in the White House. He neither identifies those “old rules,” nor describes how McConnell used them. Nor does he explain what the number 79 refers to.

Since Williams’ criticism of McConnell is in the context of the Senate’s April 4 change to Rule 22, he may be claiming that McConnell led 79 filibusters of Obama nominees between 2009 and 2013. If that’s what he means, Williams is wrong by orders of magnitude.

The Senate must end debate on a nomination before it can vote on confirmation. Most of the time, this happens by informal agreement between the party leaders. If that cooperation is impossible, Rule 22 allows the Senate to take a formal vote on ending debate. A filibuster occurs when that vote fails and, therefore, the Senate cannot take a final confirmation vote. 

During Obama’s first five years in office, from 2009 to 2013, the Senate voted 12 times on motions to end debate on judicial nominations, and six of those votes failed. That’s it: Six filibusters in five years. Williams’ margin of error on this claim is about 1,200 percent.

Williams accuses McConnell of undermining public trust in the nation’s courts, but that trust is harmed much more by wildly false claims.

This piece originally appeared in The Daily Signal