Sen. Cotton Pledges to Obstruct Biden US Attorney Nominees in Dispute Over Judiciary Rules

AP Photo/Andrew Harnik, Pool

On Thursday, the Senate debated the nomination of Vanita Gupta, the Biden Administration pick to be Associate Attorney General, the No. 3 position in the Department of Justice.

But the proceedings on Thursday were a bit odd because the first matter that needed to be taken up was a “Discharge Petition” brought by Senate Majority Leader Chuck Schumer, needed to bring Gupta’s nomination to the Senate floor because she failed to win a majority vote in support of her nomination from the Senate Judiciary Committee. The Committee is evenly divided between Democrats and Republicans, and the Committee vote split along party lines, 11-11.  As a result, under Senate rules Gupta’s nomination could not be reported out of Committee, necessitating Schumer’s motion to discharge the nomination and bring it straight to the Senate floor.

But Republican Senator Tom Cotton of Arkansas voiced disagreement with the propriety of the discharge petition.  Cotton claimed that under Senate rules, a discharge petition would only be in order after a valid Judiciary Committee vote. Cotton alleged that Judiciary Committee Chairman Richard Durbin did not follow the agreed-upon Committee rules by not allowing all Senators who wished to speak in the Committee hearing prior to the vote the full time authorized by the rules.  Cotton claimed that Durbin cut off his microphone early in his statement, did not allow him to complete his statement, and proceeded to an immediate Committee vote.

After laying the foundation for his unhappiness over Durbin’s disregard of the agreed-upon rules as a matter of expediency, Cotton stated on the Senate floor on Thursday that there would be consequences for the Democrats on the Committee because of the heavy-handed tactics of the Committee Chairman.  Cotton stated:

I guess somehow allowing members to finish their statements that are guaranteed under the Committee’s rules have somehow become inconvenient for the scheduling preferences of our Democrat colleagues or perhaps the Committee’s meeting had been mismanaged and they were worried about the two-hour rule and it wasn’t just me.  My remarks were interrupted.  At least one Republican didn’t have a chance to speak at all.  The Democrats simply broke the rules and voted out Mrs. Gupta’s nomination not in accordance with the Judiciary Committee Rules.  There must be consequences when the Democrats break the rules.  And here’s what the consequences are going to be in this case.  I will refuse consent or time agreement s for the nomination of any US Attorney from any state represented by a Democrat on the Judiciary Committee.  What we need to have is a valid vote in Committee in accordance with the Committee Rules, not ramming through this nomination today.  Today we’re faced with not knowing only the choice whether Ms. Gupta is fit to be the Associate Attorney General, we’re also faced with the question of whether to legitimize yet again the partisan bulldozing of the Senate’s rules if those rules are even marginally inconvenient, even in Committee session.

The Senate runs on the basis of cooperation.  In order to move business along, each side regularly requests “unanimous consent” to suspend the rules that apply to particular Senate operations.

The Democrats used the kinds of obstruction tactics that Cotton mentions here throughout the four years of the Trump Administration in order to prevent the Administration from functioning smoothly in working with the Senate.

These kinds of obstructive tactics can be overcome because, for the most part, they only work to delay the process and not bring it to a halt altogether.

And, as noted in the quoted language, he’s only talking about the 11 states represented by Democrat Senators on the Judiciary Committee, not all 50 states.

My view has long been that the Democrats will repeat their obstructionist conduct the next time there is a GOP Majority in the Senate and/or a Republican President if they are not made to pay a price for their past conduct.  I see Cotton’s step — though mostly symbolic — as a necessary one to take. It does take the Senate further down the path of partisan gridlock, but that is a path the Democrats have traveled freely themselves in the past.

Interestingly, while the Senate did ultimately vote to pass Sen. Schumer’s discharge petition, once the Gupta nomination was on the Senate floor, Schumer opted to postpone the vote on her confirmation until next week. She is a troublesome nominee for reasons spelled out by Sen. Cotton in his floor speech.  Schumer’s decision makes me wonder if there might be one or more Democrat Senators who are not yet on board, or maybe the Democrats know they will need the vote of VP Harris to break a 50-50 tie in order to get Gupta confirmed.