As is custom, the committee is holding the nomination over for a week. The Senate Judiciary Committee will again meet to consider Barrett’s nomination at 1 pm ET on Thursday, Oct. 22.
The committee will vote to send the nomination to the floor (technically the “calendar,” but that’s another story). A nominee does not have to have a “favorable” recommendation from the committee to go to the floor. Robert Bork received an “unfavorable” recommendation from the committee in 1987 (and was defeated on the floor). Supreme Court Justice Clarence Thomas was sent to the floor with “no recommendation” in 1991 before being confirmed.
The committee will need a simple majority vote to advance the nomination to the full Senate.
Senate Majority Leader Mitch McConnell, R-Ky., announced earlier this week that he would put the nomination on the floor on Friday, Oct. 23.
Here’s where it gets a little tricky.
If the committee finishes the nomination on Oct. 22, the Senate can’t formally consider it until Oct. 23. Keep in mind, that could begin at 12:00:01 a.m. ET Friday if McConnell really wants to hit the gas pedal.
McConnell must move to shift the Senate into executive session (versus legislative session) to specifically consider the Barrett nomination. Such a process likely requires a vote — but is not debatable (subject to a filibuster). That vote could be by roll call, a voice vote or by unanimous consent (so long as there is no objection by any senator). Democrats could create some mischief at this stage by not having a quorum present or demanding a quorum be present — but not helping constitute a quorum.
This step to go to executive session requires a simple majority. And once the Senate is in executive session for Barrett, the clerk “reports” (reads aloud) the nomination before this Senate.
There is no “motion to proceed” on this type of nomination, based on a precedent set in the late 1970s by the late Senate Majority Leader Robert Byrd, D-W.V. Thus, there is no way Democrats could filibuster just starting debate on the nomination. However, Democrats could try to filibuster on the back end.
At this stage, McConnell could file cloture to curb debate and overcome a filibuster. McConnell could do this as early as Friday, Oct. 23.
Regardless of when McConnell files cloture, by rule, the “cloture petition” (to end debate on the nomination) ripens for a vote after an intervening day.
So, if McConnell files cloture to end debate on Friday, Oct. 23, then Saturday, Oct. 24, is the intervening day. The cloture petition would ripen on Sunday, Oct. 25. By rule, the Senate can begin voting to end debate on the nomination one hour after the Senate meets, following the intervening day. Again, if they really want to hit the gas, this could happen at 1 a.m. ET on Sunday, Oct. 25.
But, we don’t know that they will move that expeditiously. It’s more likely the Senate votes to end debate on the nomination on Monday, Oct. 26, or later in the week.
Under the provisions of “Nuclear Option II” (where McConnell established a new precedent — not a rules change — lowering the bar to end a filibuster on Supreme Court nominations from 60 votes to 51 to confirm Justice Neil Gorsuch), the Senate would vote to end debate on the nomination. That entails a simple majority. Once cloture on the nomination is “invoked” (halting a filibuster), debate is then limited to 30 hours.
Once 30 hours have expired, the Senate may take an up-or-down vote on the nomination itself. It only needs 51 votes to confirm Barrett.
That’s why we believe the actual confirmation of Barrett won’t happen until the middle or end of the week of Oct. 25, likely Oct. 28-30.