After the death of 79-year-old Supreme Court Justice Antonin Scalia was reported last Saturday, Senate Republicans stated that they would not vote to confirm any replacement for Scalia until after the 2016 presidential election. The U.S. Constitution gives the U.S. Senate sole authority to determine whether nominees should be confirmed. In announcing their plans to leave Scalia’s seat vacant for the remainder of 2016, Senate Republicans followed the precedent set by Sen. Chuck Schumer (D-N.Y.), who vowed in 2007 to block any and all Supreme Court nominations by President George W. Bush should any vacancies arise.
The right of President Barack Obama to nominate a replacement for Scalia and the U.S. Senate’s right to withhold its consent to confirm his nominee have created something of a procedural impasse. Obama and the Democrats will surely try to make political hay of the Republicans’ unwillingness to confirm the president’s nominee this year. Republicans will no doubt tout years’ worth of Democratic promises to block Bush’s nominees–including then-Sen. Barack Obama’s own attempted filibuster of the Supreme Court nomination of Samuel Alito in 2006–as justification for their obstruction. What it really comes down to is that Democrats want to replace a solid conservative vote on the Supreme Court with a solid liberal one, a move with long-term legal and political implications, while Republicans wish to preserve the nomination for a potential Republican victor in November’s presidential election.
With 54 votes in the Senate, Republicans don’t need to rely on a filibuster to prevent confirmation of any future Obama nominees. They can refuse to hold hearings, refuse to report nominations out of committee, refuse to proceed to the executive nominations calendar, refuse to proceed to the nomination itself, or they can just vote to reject the nomination. Republicans would need to lose 14 votes before Senate Democrats would have enough votes to end debate and confirm a nominee (only 41 votes are required to continue debate, and prevent a final vote, on any matter). So what options do Senate Democrats have in the face of a Republican caucus which has more than enough votes to not only prevent confirmation, but also to prevent committee and floor consideration of any potential judicial nominees?
It turns out that while Democrats may not have the votes they need to confirm any nominees, they have plenty of ways to make life difficult for Republicans in the Senate. Just because they can’t force an up-or-down vote on any potential nominees doesn’t mean they can’t force multiple votes related to the nomination. To better understand the options they have on the table, let’s first review the typical nomination process in the U.S. Senate.
When a vacancy arises, the president selects a nominee and forwards his nomination to the Senate, which then refers the nomination to the Senate Judiciary Committee. The next step is a Judiciary committee hearing to evaluate the nominee, followed by a committee vote on whether to report the nomination to the full Senate. If the Senate votes to report the nomination, then the nomination is placed on the Senate’s Executive Calendar. Before the nomination could be considered by the full Senate, the Senate would need to enter into executive session (as opposed to legislative session, in which bills and resolutions are considered). Once in executive session, the Senate would then need to proceed to the particular nomination, followed by full consideration of the nomination. The final step would be an up-or-down vote on whether to confirm the nominee.
When a minority wishes to slow down business, it typically refuses to end debate on various motions to proceed (60 votes are required to end debate). As you can see above, there are numerous 60-vote hurdles throughout the confirmation process. As a result, preventing confirmation is fairly easy for the minority. It’s a piece of cake for a majority. That’s because a Senate majority can stop the process before it even starts by refusing to discharge, or report, a nomination from committee. In the case of an eventual nominee to replace Scalia, Senate Republicans can accomplish this by refusing to hold a hearing. Or, if they chose to hold a hearing and a committee vote, by refusing to report the nomination to the Senate (Republicans would need to lose two votes on the Senate Judiciary Committee in order for Democrats to overcome the committee hurdle, because a 10-10 tie vote results in a failure to report the nomination).
As a result, the best parliamentary weapon of choice for Senate Democrats is the motion to discharge. Just as Rule XIV of the Standing Rules of the Senate gives senators the ability to place on the legislative calendar an item which has not been favorably reported by its committee of jurisdiction, Rule XVII gives senators the ability to discharge from a committee the consideration of a particular subject, be it a bill or a nomination:
All reports of committees and motions to discharge a committee from the consideration of a subject, and all subjects from which a committee shall be discharged, shall lie over one day for consideration, unless by unanimous consent the Senate shall otherwise direct.
According to Senate rules and precedents, these motions to discharge must lie over one legislative day before they can be considered (a similar ripening period is required for cloture motions). Here’s how Riddick’s Senate Procedure, the bible of Senate parliamentary procedure, describes the process:
Any motion or resolution to discharge a committee from further consideration of proposed legislation or nominations, when submitted, which is in order in the Morning Hour during the presentation of other resolutions, or if presented by unanimous consent, goes over for 1 legislative day on objection to its immediate consideration, and is treated as a resolution being laid before the Senate in the next Morning Hour, following the order of submission of other resolutions.
Riddick’s states that the motion to proceed to a motion to discharge is debatable, meaning it must receive 60 votes before the actual motion to discharge can be considered by the full Senate:
If a motion to discharge a committee from a matter has gone over a legislative day and has been placed on the Calendar, a motion to proceed to its consideration after the end of the Morning Hour is in order, and debatable, and if agreed to, displaces the unfinished business.
The motion to discharge is also itself debatable. Neither the motion to discharge nor the motion to proceed to it is privileged, which means the Senate can displace each motion or debate over it with a simple majority vote.
If Democrats had 60 votes in favor of a particular nominee, this is almost certainly the route they would take in the event Republicans on the Senate Judiciary Committee refused to report the nomination to the Senate. Democrats would move to discharge the nomination from the committee, they would enter executive session, they would proceed to the nomination, and they would confirm the nominee.
So what does this mean for Senate Democrats if they don’t have a majority of votes, let alone 60 votes to kill any filibusters? What can they specifically do to make life difficult for Senate Republicans who have vowed to prevent any consideration of any nominees to replace Scalia in 2016? How can they force votes that are clearly related to a specific nomination, as opposed to just gumming up the works in general?
Although some analysts have floated the idea of a recess appointment to the Supreme Court, that is not a tenable option given the Supreme Court’s unanimous 2014 opinion restricting the ability of the president to use brief congressional recesses to bypass the Senate’s constitutional duty to advise and consent before an appointment becomes official. In NLRB v. Noel Canning, the Supreme Court stated it would not look favorably upon any recess appointments that occurred when the Senate had not been formally recessed for at least 10 days, excluding Sundays (the current Senate recess will not last 10 days given the Sunday exclusion noted by the Supreme Court). As a result of that court opinion, congressional Republicans have studiously avoided any recesses that would exceed that 10-day window. Barring some sort of catastrophic error by the parliamentarians advising the Senate majority, a 2016 recess appointment is simply not a viable option.
As a result, the best parliamentary tool for Senate Democrats is the motion to discharge. Although Democrats will only have a few narrow windows in which they can make their motions to discharge, this particular parliamentary tool allows them to gum up the works and force Republicans to take votes on a matter that is directly related to the Supreme Court vacancy. Rather than just generally obstructing the Senate’s daily business–for example, disrupting Defense funding bills or popular tax relief packages–as part of a larger temper tantrum, the motion to discharge gives Democrats the ability to stay on message.
Following Scalia’s death, Senate Republicans have made it clear that they will honor the Schumer precedent of blocking any and all Supreme Court nominees made by a lame duck president on his way out the door. The main question now is how Senate Democrats will respond to Republicans exercising the Schumer option, and whether Democrats plan to use the parliamentary tools at their disposal to make life difficult for Senate Republicans heading into November’s elections.
