COMPASS: Senate Republicans Can Stop Biden’s SCOTUS Nominee

January 31st, 2022

Good afternoon from Capitol Hill.

The House and Senate are back in session this week. Democrats are starting to panic about inflation, so will be spending the next few days trying to pass their version of the Senate’s China Competes Act – a $250 billion package they claim will boost manufacturing and remove supply-side issues, among other provisions.

The bill, if it passes, will still need to go to conference with the Senate before heading to the White House. Democrats are trying to get it all wrapped up in time for President Biden’s State of the Union address, scheduled for March 1, presumably so he has at least one accomplishment to talk about. The rest of his agenda has been FUBARed, to put it mildly.

The Senate continues apace with executive branch and judicial confirmations this week, but hovering off-screen is Biden’s forthcoming nomination to fill Justice Stephen Breyer’s Supreme Court seat.

Biden has pledged to appoint a black woman to the seat, despite the fact that 76 percent of Americans polled recently told ABC News/Ipsos that the president should consider “all possible nominees.” Over the weekend Sen. Lindsey Graham (R-SC), a senior member of the Senate Judiciary Committee, spoke approvingly of Biden’s pledge to automatically pick a black woman, saying it will “make the court look more like America.”

Though Senate Democrats need just 51 votes to confirm a SCOTUS nominee (which they have if all Democratic senators hang together and Vice President Harris provides the tie-breaker), all eyes are on Graham, as well as Republican Senators Lisa Murkowski and Susan Collins. All three have voted to confirm at least 60 percent of Biden’s judges. Collins has voted for every Democratic SCOTUS nominee during her tenure (though she did recently call Biden’s handling of the nomination “clumsy.”)

The fact that the 60-vote threshold for ending debate has been removed for SCOTUS confirmation has led many on the right to pretend there is nothing Republicans can do to stop Biden’s nominee.

While that may be correct in most scenarios, the fact that the Senate is tied between 50 Republicans and 50 Democrats presents a unique opportunity for Republicans to prevent Biden’s nomination from even reaching the floor. I made this point in a short essay for The Federalist:

…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.

For more details on exactly how this strategy would work, you can read the full piece here. Here’s the upshot: Republicans have the power to stop Biden’s nominee. They just have to decide whether or not they want to do it.

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One More Thing…

A few weeks ago I gave the keynote address to Pennsylvania’s People for Life conference where I discussed the state of the pro-life movement and where its focus should be in a (hopefully) post-Roe world. You can read the speech here.