Posted on 02/16/2016 2:41:02 PM PST by deport
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?
So what options do Senate Democrats have?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.
Preventing confirmation is fairly easy for the minority. It’s a piece of cake for a majority.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.
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The Senate is controlled by Republicans. Elections have consequences.
Only if McConnell gets paid enough
The Senate is controlled by Republicans. Elections have consequences.
______________________________
Indeed they do. Unfortunately the elections have resulted in Repug quislings who have pretty much rubber stamped the Obama Agenda.
Wussy Mitch is going to roll over and have his tummy scratched.....He hates those outside DC and will do anything to hold onto power
What exactly have they done for us?
The could send the nominee with a minority vote.
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).
You do realize that Lindsey Graham and Jeff Flake are on the Senate Judiciary Committee?
Do you know you can lull a snapping turtle to sleep if you turn him on his back and stroke his underside?
You don’t even need to do that to Mitch to make him go limp
But defending the seat is what the GOP must do -- not just to preserve the balance on the Court, but to defend -- literally to protect and to preserve the Constitution from the mischief the Democrat/Socialist want to inflict on our Republic.
There is no alternative course of action ... nor is there any need for an "alternative" course of action.
Spineless twits like McConnell also have consequences
Besides, someone should tell Harry that what is good for the goose is good for the gander and remind him of how he ran the Senate when he was majority leader and then call him a hypocrite if he complains.
The democrats would love to force a vote because it would be a disaster for GOP in November.
The “Democrats” won’t have to. There are way more than enough turncoat republicans to get the job done.
Dems have no worries.
GOP will cave.
Even if the dims place their motion to discharge, McConnell will have no difficulty beating it back. Simply take that vote.
If the Republicans can't withstand even this low-pressure tactic, we'll have to abandon the voting process nationwide.
They won’t.
It would be a good time to pre-empt any move to even schedule a floor vote. Write your senator (if a Republican) and let him know that under no circumstances is he to vote to release the nominee for a floor vote (if he's on the Committee), or to confirm ANY nominee submitted by the Traitor in Chief.
Make sure they know that if they do, even if they're not up for re-election this cycle, you have a long memory. And if they are up, they should start looking for work.
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