“This goose is cooked,” exclaimed Sen. Cory Booker, D-N.J., at last week’s final confirmation hearing for Supreme Court nominee Amy Coney Barrett.
It pretty much is. There’s not a lot Democrats can do to hold up the Barrett nomination.
Democrats have likely lost this round as, barring unforeseen circumstances, the Senate will likely confirm Barrett to a lifetime appointment on the High Court.
Sure. Democrats could go to the mat like they did in the brawl two years ago with Supreme Court Justice Brett Kavanaugh. But Democrats are playing the short game. Fate may have intervened and helped Republicans play the long game with Barrett. But Democrats look at the polls and like what they see. They suspect they’ll pick up north of ten House seats. Democrats have better than even odds to flip the Senate. And they like Joe Biden’s performance in the Upper Midwest, Pennsylvania, Florida – and even give him an opportunity in Texas and Georgia.
So, Democrats don’t want to do anything to rattle voters at the last minute or present an opening to their political adversaries. So they’ll let the Barrett confirmation play out – and then meet the GOP at the polls.
The biggest question for Barrett is timing.
FAITH AND FAMILY: A LOOK AT JUDGE AMY CONEY BARRETT
It’s customary for the Judiciary Committee to hold over the nomination of a Supreme Court nominee for a week. So after concluding hearings last week, the Judiciary Committee will again huddle to consider Barrett’s nomination at 1 p.m. ET on Thursday, October 22.
This meeting is to jettison the nomination from committee to the floor, or, from a technical perspective, the Senate “calendar.”
This involves a vote from the committee – usually with some sort of guidance for the rest of the Senate.
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 the Senate confirmed him.
The committee will need a simple majority vote to advance the nomination to the full Senate.
Senate Majority Leader Mitch McConnell, R-Ky., announced he would put the nomination on the floor on Friday, October 23.
Here’s where it gets a little tricky.
If the committee finishes the nomination on October 22, the Senate can’t formally consider it until October 23. It can’t be on the same day. So, if McConnell really wants to hit the accelerator, he could start the process at some point on Friday, October 23.
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.
WHERE DOES AMY CONEY BARRETT STAND ON KEY ISSUES?
This step to go to executive session to consider the nomination requires a simple majority vote. Republicans must be on hand for this – to provide a quorum. This could be an issue if there are more health issues in the Senate like there were a few weeks ago or if senators are in quarantine.
Once the Senate advances to executive session for Barrett, the Clerk “reports” (reads aloud) the nomination to the chamber.
There is no “motion to proceed” to this type of nomination. That’s based on a precedent set in the late 1970s by the late Senate Majority Leader Robert Byrd, D-W.Va. Thus, there is no way Democrats could filibuster by just starting a debate on the nomination. However, Democrats could try to filibuster on the back end. But they won’t get very far.
At this stage, McConnell could file cloture to curb debate and overcome a filibuster. McConnell could do this as early as Friday, October 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, October 23, then Saturday, October 24 is the intervening day. The cloture petition would mature for a potential procedural vote to curb the filibuster on Sunday, October 25. By rule, the Senate can begin voting to end debate on the nomination one hour after the Senate meets, following the intervening day. If they really want to hit the gas, this could happen at 1 a.m. ET on Sunday, October 25.
But we don’t know that they will move that expeditiously. Once McConnell tees things up on Friday, it’s possible the cloture vote to end debate doesn’t happen until Monday, October 26, or later in the week.
You really can’t filibuster a Supreme Court nominee. In fact, there’s never been a filibuster of a Supreme Court nominee in U.S. history. That said, senators did filibuster an effort to elevate Abe Fortas from Associate Justice to Chief Justice in 1968. But Fortas was already on the High Court.
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In 2017, McConnell established a new precedent in the Senate, known at the Capitol as “Nuclear Option II.” Although it never happened, it was possible that senators could filibuster a Supreme Court nomination. And like most things in the Senate some years ago, it took 60 yeas to curb a filibuster. But by establishing a new precedent (not a rules change), McConnell lowered the bar from 60 yeas to 51. Otherwise, Democrats likely would have filibustered Supreme Court Justice Neil Gorsuch and Republicans wouldn’t have had the votes to break the filibuster.
So, once the Senate “invokes cloture” to end a filibuster, the Barrett nomination is on a glide path to confirmation. Once the Senate votes to stop a filibuster, opponents may burn up to 30 hours on the clock before a final confirmation vote.
If the Senate takes the cloture vote on Sunday, the Senate could confirm Barrett as early as Monday night, October 26. If McConnell waits until Monday, the Senate will likely confirm Barrett Tuesday night, October 27 or Wednesday, October 28.
It takes a simple majority to confirm a Supreme Court Justice.
There are only 53 Senate Republicans. So any issues with health, absences or quarantines could present a problem. Sens. Lisa Murkowski, R-Alaska, and Susan Collins, R-Maine, have both expressed reservations about moving the Barrett nomination this expeditiously. But, neither have outright said they oppose the nomination.
Still, even if Murkowski and Collins are nays, Republicans should be able to confirm Barrett with 51 yeas. Vice President Pence could conceivably break a tie. But that has never been necessary to confirm a Supreme Court nominee. In fact, no vice president had ever broken a tie to confirm a Cabinet-level pick until Pence broke a tie in 2017 to confirm Betsy DeVos as Education Secretary.
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