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?
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