Testimony on Senate Resolution 355, improving procedures for consideration of nominations in the u. S. Senate. I want to thank senator lankford whos here with us at the table for agreeing to appear before us today to discuss the merits of his resolution. In 2010 this committee undertook a comprehensive examination of the filibuster in the United States senate. That examination was conducted in response to an ongoing debate about invoking the Nuclear Option. And while in action was taken immediately following the conclusion of the committees work, the senate did take steps in early 2013 to modify some of the rules and procedures more considering bills for considering bills, conference reports and certain nominations during that congress. Later that same year the senate took a more drastic step and invoked the Nuclear Option for certain nominations. Invoking the Nuclear Option affected a permanent change, as my colleagues well know. But the other changes which improve the efficiency of the senates operations were temporary and expired at the end of the 113th congress. Today we will revisit one aspect of those temporary changes, limiting the postcloture debate time for certain nominations and consider whether to restore it permanently as provided for in senator lankfords resolution. Like the change enacted in 2013, this resolution proposes to reduce the current 30hour window for postcloture consideration of certain nominations to 8 or 2 hours depending on the type of nominee. This resolution also preserves the full amount, the lankford resolution, the full amount of postcloture debate time on nominations to the highest levels of the executive branch, the Circuit Courts and the Supreme Court just like its predecessor. In short, this resolution is designed to return the senate to a time when it effectively and efficiently fulfilled its constitutional duty to confirm appointments that are necessary to the daytoday functioning of our government. The postcloture debate time provided by this resolutioning will once again allow the senate to deliberate, to debate and to vote on nominees in a timely way. And as was evidence evidenced ie 113th congress, this change does not inhibit members from debating or deliberating on the qualifications of nominees, it merely shortens what is currently an unreasonably long process. Admittedly, i did not support this change in the 113th congress. I was concerned then that once the senate altered the rules, there would be no turning back. I worried that the changes proposed at the time would with limit each senators voice and power. Traits i believe weve always tried to protect in this great deliberative institution. But i witnessed something different. Nominees, whether i supported or opposed them, were debated and voted on in a timely, practical manner. More importantly, the senate no longer wasted countless hours waiting not to hear from colleagues about the virtues or vices of certain nominees, not to debate their attributes or deficiencies, not to discuss whether they were fit or unfit in the job just waiting for 30 hours of postcloture debate time to expire. In 2013 the senate was swiftly able to carry out its duties, and we witnessed a timely filling of executive branch vacancies. Reducing debate time in 2013 allowed the senate to stop waiting and start acting. Thats exactly what i believe we need today. The American People are frustrated with washington gridlock. They believe that we cannot get even the simplest of things done. We need to fix this, we need to restore the process to what it once was, and i believe this is an opportunity to do this. I look forward to testimony today and the debate that follows in support of this resolution. Senator klobuchar. Thank you very much, mr. Chairman, and thank you to all the members that are here, and thank you to senator lankford for appearing before us. And i want to thank him for his heartfelt desire to make the senate work better and also two of my colleagues that are here, and that is senator udall whos a member of this committee and has long worked on this issue as well as senator merkley whos a visiting member today and thank him for his work. And the three of us, along with a few other people senator shaheen and others have worked on this issue the last time that we saw some changes. And, in fact, when i first got to the senate, our first bill that we introduced, our new class back in 2006, was devoted to something related to this which was Ethics Reform which made some significant changes to lobbying rules as well as gift rules and other things. And then we went on to support in 2010 an end to the secret hold. And, obviously, this committee and members of this committee are now looking at changes to the Sexual Harassment policies that are in place in the senate. And just recently with the chairmans help, passed a haw a rule change that requires mandatory Sexual Harassment training. So there has been work year after year on these issues, and i thank senator lankford for bringing this to our attention. As youll see from my remarks, i just feel that this is not the right moment to make these changes to the rule, and i will explain. Many people refer to the senate as the worlds greatest deliberative body because the senate is an institution which is designed for the careful consideration and debate of proposed laws and nominations. How we deliberate, as i mentioned, is governed by senate rules. And only once in the history of the cloture process has the senate voted to permanently reduce the time we have to debate an issue. That happened back im looking at senator alexander who is an expert on this that happened back in 1986 when we went from 100 hours of postcloture debate time to the current rule of 30 hours. The resolution we are considering today asks us the make a second permanent change. As senator lankford notes in his written testimony, following years of failing to get nominees confirmed, the senate voted 7816 to temporarily change the rules on postcloture debate time in 2013. But it is important to note that back in 2013 the circumstances were very different than they are today. Nominations required a 60vote threshold back then, the blue slip process for judicial nominees was respected, and a thorough process to select qualified judicial nominees was in place. Despite all of this, important federal positions remained unfilled even though qualified nominees were waiting to be confirmed. To address this issue back then, a bipartisan supermajority of the senate supported a temporary change to the rules. So where are we today . Well, first the reality is that nominees are getting confirmed. On thursday, just this last thursday, leader mcconnell highlights the fact that, i quote, Senate Republicans are closing in on the record for the most Circuit Court appointments in a president s first year in office. Mr. Chairman, without objecting objection, i ask that the press release provided by senator mcconnells office on december 14th of 2017 be entered into the hearing record. Without objection. The title reads thank you. The title reads judicial appointments are the sleeper story that matters. Circuit courts, a dozen trump appointees in his first year in the white house. President trump has, in fact, successfully appointed 12 Circuit Court judges, more than any other president in the first year of office since the federal Appellate Courts were established 126 years ago. In addition to my service on this committee, i also serve on the Judiciary Committee which i have seen firsthand the process and pace at which these nominees are being processed. President trump will have 19 judges confirmed in the first year of his presidency compared to just 13 for president obama in the same time period. And in the Judiciary Committee, we have reported 44 judicial nominees to the senate floor already this year. But in president obamas first year in office, we reported only 23 nominees out of committee. The Committee Also reported just 32 nominees in the first year of president bushs term and 28 in the first year of president clintons compared to the 44 weve seen this year. Its also instructive to look at the end of president obamas term when just 22 judicial nominees were confirmed in his last two years in office. Thats fewest in a Congress Since harry truman was president. When you look at the facts, it is clear that as my republican colleagues have acknowledged the Current Congress is on track for a recordbreaking year of advancing judicial nominees, and it is unnecessary at this moment to change the rules of the senate. As ive told senator lankford this is something we could consider perhaps before a new president comes into office. But now when nominees are moving through the process with many in a purely partisan manner, this change would only add to the partisan atmosphere. The danger involved in reducing the debate time to expedite the confirmation of nominees that we are considering was also highlighted by Louisiana Republican senator kennedy last week during a Judiciary Committee hearing. I was at that hearing. Many people have seen the video of senator kennedy asking matthew peterson, a nominee to be a District Court judge, basic legal questions. Peterson was unable to answer any of them. Yesterday mr. Peterson withdrew his nomination. Last week the administration also withdrew the nominations of jess mattier and is jeff of tally, just 3 of the 18 nominees that have been withdrawn this year, and those nominees were withdrawn after the Committee Process. These nominees and others demonstrate the importance of careful consideration of nominees for executive branch positions and Lifetime Appointments to the bench. Ill also note that the American Bar Association has now rated four of the 56 judicial nominees put forward by Trump Administration as not qualified including two who received that rating unanimously. That is fairly uns precedented given the fact unprecedented given the fact before year the aba had only issued that rating twice since 1989, and we have seen two more of these ratings this year already. The American People deserve qualified judges who will interpret the law fairly, and the best way to get judges who are fair and impartial is to have a solid evaluation and confirmation process and where the executive branch is collaborating with the senate and we have ample time to review and debate these nominees. At a time when we have seen unprecedented challenges to the judiciary and to the rule of law, we need appropriate checks to insure the selection of qualified nominees to both the executive and Judicial Branch now more than ever. Before we turn to senator lankford, i would like to note that im glad we are having a hearing in this committee. I hope we will have more, mr. Chairman, next year. And i also appreciate senator lankfords work on, with me on the sate election infrastructure issue, something thats exciting developments there and will be a great topic for a hearing. Just thought id put in that plug. With that, thank you very much, mr. Chairman. Senator lankford, your written testimony will be made part of the hearing record, as you know. You proceed as you wish. Thank you, mr. Chairman, ranking member. Friends and colleagues, i anticipate this to be a dialogue. I dont think a single one of us thinks that things are going swimmingly. Were not engaging on the issues. We do consume a tremendous amount of time not in 30 hours of debate, but in 30 hours of silence on the senate floor with occasionally someone to step up and speak on something unrelated to the 30 hours of debate on the floor for that nominee. This is not so much a debate about be only we had 30 hours of debate, we would get so many facts out on so many individuals, because were really not debating individuals. The work is done in the committees. The work is done in the back and forth with the administration. Thats where it really occurs. The challenge is we have learned as a body that we are now either going to do nominees, or were going to do legislation, but with we cant do both. Because if the calendar is full for a week on three m nominations, youll never get to any legislation. And we continue to have our constituents come to us and say whens the senate going to vote on things, and we can respond we are, on nominations, but we dont have time for nominations and legislation. This continues to accelerate. The issue that were going to continue to face is the gridlock on capitol hill is spreading across the rest of washington. And the more that you have nominees that are not confirmed in every agency, all of us and our constituent services folks and legislative staff will tell us theyre calling over to agencies, and the agencies are saying we cant give you an answer, theres not a senateconfirmed person there. As that spreads, it affects all of our constituent services, it affects every permit that we request can, it affects every pit of the process every bit of process that happens. The gridlock thats here is moving over there. That doesnt help us long term. I tried to be able to give just some basic examples of this and some history as we deal with postcloture debate just on nominations. 12 cloture votes for nomination during that entire time period. Then starting in 1993, the senate averaged around six cloture votes for nominations through 2004. In the 109th session, the average jumped to nine cloture or votes for nominations for a year. Then from 20092012 it jumped again to 13 in a year. In 2013, the senate determined something had to be done about nominations, so in january 2013 the Senate Passed s. Res. 15 to reduce postcloture debate time from 30 hours to 8 hours and reduce that to 2 hours for District Court nominees. Under the Standing Order, the postcloture debate for cabinetlevel nominations all stayed at 30 hours. Standing order in 2013 was an attempt to avoid the Nuclear Option. As we know well from history, Nuclear Option was still invoked in november of that same year. That original, that Standing Order, though, remained, and it functioned through the rest of 2014. And we saw the operation of it. Now, in 2013 the Senate Considered it intolerable that the senate would have 1315 cloture votes in a year on nominations. This year weve had 63 cloture votes on nominations. Thats not comparable to where we were, its an acceleration. I would say to this body we all know the direction of this body. We have 63 cloture votes on nominations now for this president. When the president ial party changes, therell be a future deming contact president , republicans will say they did 63 to us, well do 120 to them. And the next time itll be 240 to them. As we have watched over the last 20 years slowly go up year by year, i dont know how that turns around until this body determines thats going to turn around. Enough is enough. The rules of the senate are not something that we can just complain about and do nothing about. The senators control the rules of the senate. And at some point we have to determine this is getting out of hand. We have to be able to solve it. Now, i was not here in 2013 when the Nuclear Option was invoked, but ive heard the stories of the frustration that was rising. And as my democratic colleagues believe that republicans were pushing it too far, and so they determined something has to be done to get this set. I would just say i have the sense that were in a very similar position. That this can be pushed too far, and at some point republicans respond, something has to be done. For the sake of the future not just this administration, but for the sake of the future we have to determine how were going to do this and be able to put in place in a way that actually works. Senator merkleys my next door neighbor. I was probably in the senate, i dont know, three weeks, and he reached out to me and said can we sit and talk about rules. Ive heard you mention some things about rules. I sat in his office, we shared a commonality on a lot of ez these issues and the sense that we have to find a way to resolve these issues. Not just talk about them, but figure out how its going to work. Senator merkley had a proposal to take all nominations to two hours period except for Supreme Court nominations. This is not a lot of debate that happens on floor anymore. Most of it happens in committee. And now with 51 votes for all nominees, the outcome is most often certain. So its really determined before we ever get there. The issue is are we going to do legislation and nominations, or are we only going to do nominations. As i mentioned in my written testimony, the roosevelt term of the first 100 days, that can never be a marker again. Because from here on out, every president in their first 100 days wont even get their cabinet in place. They wont be able to move legislation because they wont be able to get personnel, because itll be tit for tat from here on out. Losing that time period is a great loss to the American People and is unexplainable to those of us in the senate. My proposals simple lets take the rule that was done during that time period in 2013 with wide bipartisan support, and lets make it permanent and say this is how were going to continue to function from here on out. I would very much appreciate the conversation on it. If theres a better idea to do it, im willing to be able to take it on and to be able to say what can we do to fix this. But the best idea that i had was to take one that was already done and already agreed on and say lets make it permanent and go from here on out. Mr. Chairman, id be glad to entertain questions. Thank you. Senator lankf