Here’s an idea to ponder as a sort of closing act for the Obama administration and/or and opening salvo from Senate Democrats: a mechanism for confirming Merrick Garland to the Supreme Court. As we’re all aware, congressional elections in November determined the makeup of the entirety of the House of Representatives, as well as one-third of the Senate. The Senate, of course, elects one-third of its membership every two years, such that the six-year terms are staggered among three “classes,” and two-thirds of the Senate membership remain incumbent in office even during elections and post-election transition periods.
At noon on January 3, 2017, the terms of the current members of the Senate’s Class III will come to an end. At that point, the Senate consists of 66 sitting senators, and we would ordinarily expect Vice President Joe Biden, in his capacity as Senate president (in which role he continues to serve until noon on January 20th), to begin swearing in the senators-elect of the new Class III.
Typically, the swearing-in would be the first order of business, although occasionally there are brief welcoming remarks from the Majority and Minority Leaders, the Majority Leader traditionally being afforded preferential recognition by the presiding officer. That is, he gets to speak first, if anyone has anything to say before things get started.
But when Biden looks out over the Senate floor—in what will likely be one of his last official acts—he’ll see 66 currently sworn and serving senators, 34 of whom will be Democrats, two who are independents, and 30 who are Republicans. At that moment you might wonder, then, just who constitutes the “majority,” and therefore who the Majority Leader actually is. In fact, as the numbers tell us, Democrats will make up the majority of the Senate, and their leader might arguably be entitled to preferential recognition. This situation has surely occurred before. It’s just never mattered. And so in all likelihood, absent some other plan, we would expect Biden to afford that privilege to Mitch McConnell of Kentucky, the current Majority Leader, who’s expected to continue in that role in the new Congress.
Suppose, though, that there is another plan. Suppose Biden instead chooses to recognize the sitting Democrats as the majority, that being the then-current truth of the matter? And suppose, therefore, he chose to recognize the Democratic floor leader first? Now, we all understand that Chuck Schumer of New York is slated to become the Minority Leader in 2017. But at that point, he’s merely one of the 34 senators-elect waiting to take the oath and begin his term. Dick Durbin of Illinois is, at that moment, the highest ranking Democratic floor leader. So suppose Biden were to recognize Durbin first, and grant him the floor for opening remarks?
Those of you who remember the complicated lessons from a few years ago on the origins of what Republicans originally called the “Constitutional option” (later referred to as the “nuclear option”) might recall that the original “script” called for the invocation of a little bit of parliamentary “magic” on the first day of a new Congress. That is, it rested on the precedent of rulings by two previous (Republican) vice presidents that despite Rule V, which states that “the rules of the Senate shall continue from one Congress to the next Congress,” the new Senate may—on the principle that no Senate shall be bound by the “dead hand” of a previous Senate—consider under general parliamentary law whether it will accede to the continuance of the existing rules, or whether it wishes instead to amend them.
In the context of filibuster reform, these rulings were critical in that general parliamentary law has no requirement for supermajorities on the question of closing debate. In other words, until a new Senate acceded to the continuance of the existing rules, there was no operative cloture rule, and debate on any proposed new cloture rule could be closed, and the measure carried by, a simple majority vote.
Suppose Durbin, then, being recognized from the floor by Biden, were to seek such a ruling? Given the existing precedent, he’d be likely to get it. Now, suppose further that Biden has carried with him a message from President Obama, renominating Merrick Garland to the Supreme Court (his previous nomination having been returned to the president at the adjournment sine die of the 114th Congress). And having now been notified of that message, and having received the ruling that the Senate was currently proceeding under general parliamentary law, suppose Durbin was to move that the Senate as currently constituted immediately consider the Garland nomination?
Now, here’s where things get difficult: part of the ruling with respect to the Senate’s operation under general parliamentary law was that the Senate could be presumed to be acceding to the continuance of the old, existing rules if it begins to operate under them, thereby acquiescing to their continuance. Arguably, taking up a Supreme Court nomination might be considered such an act, which itself would arguably trigger a sort of magical reestablishment of the previous Senate’s rules.
There are options for dealing with such objections, of course. And they’d have to be careful not to yield the floor at any point, and not to entertain any intervening motions of any kind along the way. And they’d also have to be willing to proceed over the very loud, but still out-of-order objections from Republicans. That’s to say nothing of the Republican sore feelings that would come from Democrats winning the right to fill the SCOTUS seat the entire nation knew belonged to President Obama. But if Senate Democrats can show that the mechanics can work, and that they’re committed to executing the plan, Republicans will have to decide whether they’d just prefer to lose and call foul, or start thinking about a deal.
Even if they refuse, on principle, to seek a deal and instead opt to trigger this play, this could absolutely do the trick. And having a reasonable person in that SCOTUS seat could be the difference between surviving this trainwreck of an “administration,” or seeing it destroy everything. Alternatively, in the post-fact, LOL YOLO Nothing Matters world, what’s the point in not pulling out all the stops?