Republicans erupted at a Senate Judiciary Committee meeting Thursday after Chair Richard J. Durbin blocked them from speaking about two judicial nominees ahead of roll call votes.
Partisan tensions were already high at the markup, since Democrats later would vote to authorize subpoenas related to a Supreme Court ethics investigation.
The Illinois Democrat, apparently irked by a Republican objection that led to a Senate parliamentarian ruling that wiped out Nov. 9 panel votes to advance the two nominees, called for roll call votes on those nominees.
Sen. John Cornyn, R-Texas, asked for an opportunity to speak on the nomination of Mustafa Kasubhai to be a judge in the District of Oregon. Durbin denied it.
“Oh, I’m sorry, we’ve already done that at great length,” Durbin replied, alluding to the previous times Kasubhai had appeared on the panel’s business meeting agenda. “Senator, we’ve debated these nominees twice.”
Sen. Marsha Blackburn, R-Tenn., also asked to speak on the nominee, saying she had not had a chance to do so at previous markups. Sen. Tom Cotton, R-Ark., spoke out to defend his colleagues’ ability to debate before a vote.
“We don’t have a right to speak under the rules?” Cotton asked. “The third time, I’d say no,” Durbin responded.
“So you’re just going to make it up?” Cotton asked, taking a sharper tone.
Durbin didn’t relent, and the committee room turned acrimonious. Republicans complained and warned him about what would happen as the clerk took the vote. No Republicans announced a vote when their names were called.
“Come on man, I mean. Ok, do this, just do it,” Graham said.
“You’re going to have a lot of consequences coming if you go down this road,” Cotton said. “I’ve cautioned a lot of you.”
Graham added: “You better believe it.”
Blackburn said: “So you’re telling us to shut up? You want us to shut up? Is that what you’re saying?”
Durbin didn’t fully explain at first, and only said: “We have debated.”
Sen. Mike Lee, R-Utah, alluding to the reason for the parliamentary ruling, told Durbin that those debates were at prior meetings where there wasn’t a quorum to do business.
“That vote didn’t count. We’ve got people who were here now, who weren’t there then, who would like to speak,” Lee said.
When the clerk called out Cotton’s name for a vote, he said more than yes or no.
“Mr. Cotton says the chairman needs to rethink his decision and let Sen. Cornyn and Sen. Blackburn speak. That’s what Mr. Cotton says so you can mark that down as my vote,” Cotton said. “Everybody over there who’s not willing to look at me or look at Dick Durbin needs to think about it as well.”
When the clerk called Blackburn’s name, she replied: “I’m waiting to be heard on the nominee, I’ve requested several times to be heard on the nominee.”
That prompted Cotton to comment: “Now I guess Senator Durbin isn’t going to allow women to speak. I thought that was sacrosanct in your party.”
The rhetoric continued once Durbin took the same approach to the second nomination of Eumi K. Lee to be a judge for the Northern District of California.
“Mr. Chairman you just destroyed one of the most important committees in the United States Senate,” Cornyn said. “And you set a precedent which will be repeated. Any time one party or the other takes advantage and takes the low road it sets a precedent that will then become a norm.”
Lee said when Republicans were in the majority, they allowed Democrats to speak “ad nauseum.”
Graham told Durbin that the committee has to bring them up again because of the parliamentarian ruling: “It wasn’t our fault, it’s your fault.”
As the vote continued, Cornyn said: “Mr. Chairman I hope you’re proud of yourself,” and, “This is a complete disgrace.”
Graham added: “I don’t know what drives this, Dick, I really don’t,” and, “I mean, this is so unnecessary.”
Only after those votes did Durbin more fully explain why he ruled that members did not have an opportunity to speak before the votes. He brought up two times when Republicans were in the majority and called for votes without giving Democrats a chance to speak.
And he said senators had had two opportunities to attend the markups and speak on these two judicial nominations. “We did it twice. This is the third time they were brought up, and that’s the reason the ruling was made by the chair,” he said.
And after those previous roll call votes, Durbin said, something occurred that was news to him. He referred to a common practice of senators who, when they are elsewhere when a committee vote happens, inform another senator to vote for them by proxy. If the senator then joins the meeting before it ends, they can ask to have their vote counted as if they had been there.
“Have you ever voted proxy in a committee and then arrived a few minutes later, and said I want to be recorded as voting present, and with unanimous consent there has never been an objection? There was an objection from the Republican side of the aisle to the parliamentarian,” Durbin said.
“That’s why we had to take an additional roll call vote on the first two nominees. So it wasn’t just a happenstance, it was a circumstance It was created beyond our control,” Durbin said.
Cotton then spoke “for the record.”
“It wasn’t some esoteric rule, you didn’t have a majority present the last time we voted on these judges,” Cotton said. “That’s a widely known rule. It’s not some obscure technicality. Incompetence on your part does not override the prerogatives of senators on our part.”
Durbin replied this was the first time there’s ever been an objection when a proxy vote asked to be recorded as physically present. “And I just say, all of us because our schedules face this all of the time, and this is the first time I’ve seen it in the time that I’ve served in the United States Senate,” he said.
“And the parliamentarian ruled against you,” Cotton replied.