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Eno Transportation Weekly

Senate Goes Nuclear (Again), Increasing Likelihood of Confirmation of Transportation Nominees

April 5, 2019

This week, Senate Majority Leader Mitch McConnell (R-KY) used the so-called “nuclear option” to change Senate procedures to cut the amount of time that the minority party can delay a vote on any executive branch nominee below the rank of Cabinet Secretary (or its equivalent) from 30 hours down to just 2 hours.

On April 3, after the Senate had voted to invoke cloture and limit debate on the nomination of an Assistant Secretary of Commerce by a vote of 95 to 3, McConnell said the following:

Mr. President, I raise a point of order that post-cloture time under rule XXII for all executive branch nominations other than a position at level 1 of the Executive Schedule under section 5312 of title 5 of the United States Code is 2 hours.

The Presiding Officer then ruled against McConnell’s point of order (correctly so, under the rules), and McConnell then appealed the ruling of the chair to the Senate, which sustained his appeal by a vote of 51 to 48. All Republicans voted with McConnell except Susan Collins (R-ME) and Mike Lee (R-UT). So, from now on, debate on Deputy Secretaries, Assistant Secretaries, Administrators, Commissioners, and Ambassadors will only be 2 hours once a majority has voted to invoke cloture, not 30.

Next week, McConnell is expected to use a similar maneuver to lower the post-cloture debate limit on U.S. District Court judicial nominations from 30 hours to 2 hours as well. Yesterday, McConnell filed cloture petitions on four district judges, an ambassadorship, and the head of the Wage and Hour Division at the Labor Department.

So far, under the Trump Administration, McConnell has chosen to prioritize judges (who serve for life) over most nominations to executive branch positions that only serve so long as Donald Trump is president (if that long). If they all take 30 hours apiece, this prioritization makes sense. And within the judges, he has prioritized the Circuit Court of Appeals judges ahead of the district judges. The result has been that anyone nominated to a position below the rank of Deputy Secretary can usually be blocked if as few as one Senator really opposes them, because McConnell has judged that 30 hours of Senate floor time is too much to spend on such nominees.

At 2 hours apiece, it becomes much easier for McConnell to spend the time to confirm such nominees. The nomination of Thelma Drake to head the Federal Transit Administration springs to mind – her nomination was approved in committee with only one dissenting vote, but that “no” vote (Sen. Bob Menendez (D-NJ)) is really, really opposed to her nomination and can be expected to drag things out for as long as the rules allow. At 30 hours, that was not enough to get McConnell to move on her nomination. But at 2 hours, she might get confirmed in the coming weeks.

Earlier this week, the Senate Commerce, Science and Transportation Committee approved five holdover Trump Administration transportation nominees, all by party-line roll call votes of 14 yeas to 12 nays:

  • Diana Furchtgott-Roth to be Assistant Secretary of Transportation for Research and Technology.
  • Heidi King to be Administrator of the National Highway Traffic Safety Administration
  • Lynn Westmoreland, to be a Member of the Amtrak Board of Directors
  • Joseph Gruters, to be a Member of the Amtrak Board of Directors
  • Rick Dearborn, to be a Member of the Amtrak Board of Directors

So long no more than one or two Republicans come out in opposition to any of those nominees, McConnell might move any of those in the coming weeks as well.

(Keep an eye on our constantly-updated list of Trump Administration transportation nominees for any changes.)

 

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