With Justice Stephen Breyer officially announcing his retirement on Thursday (a full 24 hours after the White House announced it for him), Senate Democrats will have a chance to fill a Supreme Court seat, likely before the 2022 midterm elections in November.
But ever since 2017, when Senate Republicans invoked the nuclear option to confirm Supreme Court justices at a simple majority, instead of at the usual 60 votes necessary to break a filibuster, there has been procedurally little minorities can do to prevent a nomination from moving forward (the outright lies, smears, and chaos tactics Senate Democrats employed against Justice Brett Kavanaugh notwithstanding).
This conventional wisdom, however, is true only of Senates that present a clear minority-majority differential. The Senate of 2022 is tied, with 50 Democrats and 50 Republicans, which presents Republicans with an interesting procedural option: denying a quorum in the Senate Judiciary Committee, thus preventing the nomination from being reported out of committee and placed on the calendar, and ultimately moved to the Senate floor.
In parliamentary practice, a quorum is the number of members that must be present to hold votes and conduct official committee business. By failing to show up to vote on the nomination in committee, Republicans could prevent the nomination from reaching the Senate floor by appealing to the Senate’s Rule 26, which requires that a majority of members, physically present, report the bill out of committee. (The Senate’s Rule 14, which allows senators to bypass committee consideration for legislation, cannot be used for nominations.)
What has made this strategy ineffective in the past — namely, a Senate majority being able to present a numerical majority of their members in committee — is what makes it work in 2022, where the Senate’s committee membership, reflecting the makeup of the Senate, is in a tie.
The Unique Opportunity Of a Tied Senate
Senate Democrats attempted this strategy in 2020 during the Supreme Court nomination of Amy Coney Barrett. It failed, however, because Sen. Lindsey Graham, R-S.C., then chair of the Judiciary Committee, simply ignored the committee’s quorum requirement that Democratic members be present and reported the nomination to the floor with Republican votes.
Although he technically ignored committee rules, Graham was able to do this without upending any of the Senate’s practices because of one of the Senate’s standing rules: Rule 26, paragraph 7(a)(1), to be precise, the end of which stipulates that “no measures or matter or recommendation shall be reported from any committee unless a majority of the committee were physically present.”
In other words, the text of Rule 26 simply requires that, to be considered on the Senate floor, legislation and nominations must be reported by a majority of members physically present. There is no requirement that minority members participate, just that a physical majority of members is present to vote on the matter.
While the Judiciary Committee rules state that minority members must be present, the standing rules of the Senate, which govern the Senate floor, “cured” Graham’s violation of the Judiciary Committee’s quorum rules, rendering them unenforceable.
However, the provision of Rule 26 that saved Graham in 2020 could now doom a similar Democratic effort in 2022. This is due solely to the fact that the current Senate is tied between 50 Republicans and 50 Democrats.
In a 50/50 Senate, committee ratios (the number of Democrats to Republicans) are also tied. This means Senate Democrats on the Judiciary Committee could not, by definition, present a physical majority of members on their own. To meet the requirements of Rule 26, they need Republican help.
Should they follow the 2020 actions of Graham and attempt to send the nomination to the Senate’s calendar with only Democrat votes, the nomination would be in violation of Rule 26 and thus ineligible to be moved forward. If, for some reason, the nomination made it to the calendar anyway, it would still be subject to a point of order when the Senate attempted to take up the nomination on a motion to proceed.
At that point, Democrats would have to suspend Rule 26, which requires a one-day notice and two-thirds of the senators voting in the affirmative (67 votes when all senators are present).
Democrats, of course, always have the option to use the nuclear option to ignore this rule. The nuclear option gets its name because it is a procedure by which a simple majority of senators ignore their own rules – and in fact, creates a precedent that forces the Senate to violate them over and over again. Presumably, this would be viewed with suspicion by Sens. Joe Manchin, D-W.V., and Kyrsten Sinema, D-Ariz., who recently opposed using the nuclear option on Democrat-led legislation to federalize the election system.
The Strategy Is Already Working
Sen. Rand Paul, R-Ky., the Republican ranking member on the Senate’s Small Business Committee, spotted this opportunity in Rule 26 several months ago, and has been using it to his advantage ever since.
For more than a year, Republicans in both the House and Senate have been attempting to claw back money that the Biden administration illegally doled out to Planned Parenthood under the Paycheck Protection Program, passed as part of the Covid-19 relief effort. The program was intended for small businesses. But the Small Business Administration, illegally, according to congressional Republicans, labeled Planned Parenthood affiliates small businesses and sent them close to $80 million in taxpayer funds.
The SBA has since determined that Planned Parenthood was, in fact, ineligible for the small business relief money, and has asked the abortion giant to return the funds. Those requests have been ignored. Also, despite being notified they were ineligible, Planned Parenthood has since applied for and been approved for further PPP loans.
“The SBA has wrongfully approved nearly $100 million in taxpayer-funded Paycheck Protection Program loans to Planned Parenthood branches across the country,” Paul said in a statement to the Washington Examiner. “On June 30th alone, SBA approved four PPP loans to Planned Parenthood affiliates despite a determination from the last Administration that these entities were ineligible for the program.”
Unlike most Senate rhetoric, Paul backed his words up with action: “We will not allow a vote on this nominee until the SBA takes action to recover the wrongfully acquired PPP funds by Planned Parenthood entities,” he said.
To enforce it, he and the other Republican members of the Small Business Committee have simply refused, for months, to provide a quorum to confirm the SBA’s nominee for deputy administrator until the SBA takes aggressive action to recover the funds Planned Parenthood has erroneously received from PPP.
It’s working. Democrats have no recourse under the rules, and the 50/50 Senate means Rule 26 prevents them from simply bypassing the Republican objection.
A deputy nominee at the Small Business Administration is, of course, worlds different in magnitude from a Supreme Court nomination. But Paul’s strategy has shown that it can work, as long as Senate Republicans hold together. They simply have to choose to do it.