How Democrats Can Oppose the Republicans Only Judicial Hearings

by Sam Wice — Tuesday, Oct. 30, 2018

Even though the U.S. Senate is on recess, Senate Republicans held hearings on judicial nominees, which only Senate Republicans attended. Senate Democrats opposed the hearings as an attempt to prevent serious questioning of the nominees. Unlike the Brett Kavanagh nomination, Senate Democrats have several ways to prevent most of the nominees from being confirmed.

First, Senate Democrats can prevent the judicial nominees from being voted out of committee. Before the nominees are considered on the floor, they must first be voted out of committee. The Senate Committee on the Judiciary’s Rule III requires that to transact any business, at least two members of the minority must be present. Thus, Senate Democrats can prevent a vote on the nominees leaving committee by refusing to provide the necessary quorum.

Additionally, Senate Republicans could not avoid a committee vote through a discharge resolution (i.e., resolution to bring the nominations directly to the floor). The Congressional Research Service (CRS) has advised that Senate rules require the typical 3/5ths support to stop debate on a discharge resolution for a nominee. The reduced 50-vote (plus the Vice-President) threshold only applies to the confirmation vote.

I will note that the Senate Parliamentarian is the official arbitrator of the Senate rules, not CRS. Further, Republican senators could always “reinterpret” the 50-vote threshold to end debate to apply to discharge resolutions on nominees.

Senate Democrats likely did not try this quorum tactic for the Kavanagh nomination because by tradition the minority party will participate in committee business, even when it will lose on a party-line vote. This participation ensures that the minority party has some say in the process for considering business. Additionally, Senate Democrats might have feared that for such a big issue as a Supreme Court nomination, Senate Republicans would remove all impediments to discharging nominees, reducing the power of the minority party.

Conversely, Senate Democrats may think that with these nominees (i) Democrats could convince at least two Republican senators to oppose reinterpreting Senate rules to allow judicial nominees to bypass a committee vote without a full hearing or (ii) Senate Republicans would not reinterpret Senate rules to confirm lower-court nominees.

Second, to stop most of the nominations, Democrats could run out the clock on the current Congress. Once the next Congress begins on January 3, 2019, Senate Rule XXXI specifies that nominations not acted upon by the full Senate are returned to the president. Although President Trump could re-nominate the failed nominees, they would have to start at the beginning of the confirmation process. While sometimes the parties will waive, by mutual consent, some of the nomination process that occurred in a previous Congress, Senate Democrats (even in the minority) could force the nominees who received a Republicans only hearing during the Senate recess to have a full hearing in the next Congress.

To run out the clock on the current Congress, Senate Democrats could oppose the nominations by requiring the full 30-hours of debate on a nominee. When the Senate lowered the threshold to 50-votes to end debate on a nominee, the Senate kept the 30-hour time requirement for debate. Unlike the Kavanagh nomination, which was only one nomination, Senate Republicans wish to confirm several judicial nominees. Specifically, Senate Republicans held Republicans only hearings for ten nominees. This is in addition to the 34 judicial nominees that the Senate Committee on the Judiciary has already sent to the Senate floor, but have not received full Senate votes.

To confirm each nominee, the Senate would need 1,320 hours. The Senate, however, only has limited time to confirm nominees before the next Congress begins on January 3, 2019. Assuming that after the Senate returns from recess (November 13, 2018), the Senate conducts an aggressive 12-hours a day schedule each weekday, except Thanksgiving, Christmas, and New Year’s Day, the Senate would only have about 420 working hours remaining (i.e., 14 nominees). The 34 judicial nominees already on the Senate floor could not even be confirmed in that time.

Senate Democrats could also limit the amount of time the Senate has to consider the nominees by aggressively forcing the Senate to have a quorum. To be in session, the Senate must have a quorum of 51 senators. A quorum call would effectively require all but one Republican senator to come immediately to the Senate floor. Republicans effectively only need 50 Republican senators present because unanimous consent rules (i.e., the Senate can violate its procedures if nobody objects) require at least one Democrat to be present at the quorum call. Without a Democrat present, Republican senators could move without objection to set aside the quorum call.

Thus, anytime at least two Republican senators are away from the Senate (e.g., go home for the day or are out of town) Senate Democrats could force the Senate to shut down. This requirement could prove troublesome if Republican senators want to be home for the holidays. Alternatively, Democratic senators would have the freedom to leave town during large periods of time because no votes would be taking place during the 30 hours the Senate would use to overcome a filibuster.

Knowing the Senate only has a limited time to confirm nominees, Senate Republicans will likely prioritize confirming nominees to the Courts of Appeals. Specifically, Senate Republicans will likely try to confirm Jonathan Kobes to the Eight Circuit, who has already has been voted out of committee, and the three Courts of Appeals nominees who received a Republicans only hearing during the Senate recess: Allison Rushing for the Fourth Circuit, Bridget Bade for the Ninth Circuit, and Eric Miller for the Ninth Circuit. The limited time means Senate Democrats should be able to prevent the confirmation of most of the district court nominees that the Senate considered in the Republicans only hearings during the Senate recess. Further, if Senate Democrats can convince two Republican senators to support full hearings for the nominees, they can prevent the three Courts of Appeals nominees who had a Republicans only hearing from being voted out of committee without a full hearing.

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About Sam Wice

Sam Wice is a former analyst at the Congressional Budget Office and a former Council Member of the American Bar Association’s Section of Administrative Law and Regulatory Practice. He can be reached at sam.wice[at]outlook.com.

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