A staffwriter at DailyKos has come up with a plan to actually confirm Merrick Garland to the United States Supreme Court.
On January 3, 2017, Democrats will hold the majority in the Senate for a few minutes, until the newly-elected Senators are sworn in. Biden could convene the Senate in those few minutes and call for a vote. The majority could then suspend the rules and vote in Merrick Garland.
More elaborately: at some point on January 3, 2017, 34 Senators’ terms will have expired. Previous to the election, the composition of the Senate was 54 Republicans, 44 Democrats, and 2 independents who caucus with the Democrats. The results of the election were such that the Republicans held 22 seats, the Democrats held 10 seats, and picked up two formerly Republican seats.1
Now, 2 U.S.C § 1 provides that the incoming Senators’ term must begin on January 3, but 2 U.S.C.§ 21 provides that a new Senator must take the oath of office prior to taking his or her seat: the oath of office is the final step in the process of this person becoming a Senator. Meanwhile, 3 U.S.C. § 101 specifies that the new President and Vice President, who presumably will be Donald Trump and Mike Pence, shall not take office until January 20, 2017. So on January 3, 2017, Barack Obama will still be President and Joe Biden will still be Vice President.
So there will be a very brief period of time after the Senate convenes and before the new class of Senators2 are sworn in and recognized, that the Senate will be “short staffed.” There will at that moment be only 66 senators total. During these few “short-staffed” moments, the composition of the Senate will be 30 Republicans, 34 Democrats, and 2 independents who caucus with the Democrats. As Democratic minority leader Chuck Schumer won’t be sworn in yet (he’s part of the incoming class of mostly re-elected incumbents), the ranking Democrat in the Senate will be Dick Durbin. Democrats will, for that very brief moment, have procedural control of the moment-to-moment affairs of the Senate by virtue of Vice President Biden presiding, and a majority of votes by virtue of having a full quorum within their own ranks.
The play goes as follows:
- At noon on January 3, 2017, Vice President Biden takes the chair of the United States Senate, in his Constitutional capacity as President of the Senate. He calls the Senate to order.
- Instead of recognizing and swearing in the incoming class of elected Senators, Biden instead recognizes Senator Dick Durbin and not Senator Mitch McConnell, which would otherwise be the custom.
- Senator Durbin then moves to suspend the rules of the Senate, and immediately vote upon the confirmation of Merrick Garland to the Supreme Court without debate.
- Republicans jump up and down and scream as if they had just been branded. But Biden ignores this; he refuses to recognize any Republican for any reason.
- Durbin’s procedural vote passes on straight party-line vote, 34 (or 36) to 30. Incoming elected Senators, not yet sworn into office, cannot vote.
- The substantive vote to confirm Judge Garland takes place immediately thereafter. With 34 (or 36) votes against 30, it doesn’t even matter if the Republicans walk out; the Democrats still have a quorum. Garland is confirmed.
- Waiting in the wings, Garland immediately takes his oath of office.
- Only after he receives word that Justice Garland has sworn his oath does Vice President Biden lead the Senate in swearing in the new class of Senators and the other usual ceremonies of beginning a new Term of Congress.
My knowledge of parliamentary procedure is such that this plan is at minimum not crazy. I can’t think of what Republicans might do to stop it as a procedural matter. I find no guidance whatsoever in the Constitution.
Here are my questions, and I don’t know the answers to them.
- At what time of day on January 2, or January 3, will the outgoing Senators’ terms expire? I think the answer is noon on January 3, 2017. But I’m not sure. Up until then, the outgoing Senators are still Senators and get to vote, which means up until then, the Republicans have a majority of seats.
- In the pre-enrollment “short-staffed” period, the Senate will not have adopted its formal rules of procedure yet; these are agreed to by the Senators as part of those opening ceremonies. So what rules govern its procedure? Neither the Constitution nor the U.S. Code appear to offer any guidance: until the rules are adopted, it looks like it’s pretty much just “majority wins.” But I might be wrong about that.
- Could one of the 30 Republicans (say, Senator McConnell) file a filibuster in writing with the Secretary of the Senate pursuant to 2 U.S.C. § 30b?
- Do Senate Democrats and Vice President Biden have the stones to actually do this?
And here’s my concern: this pretty much throws any notion of comity to the wind. This is outside of the Senate’s usual norms, outside of standing political norms, and without any precedent that I can see in history at all.3 This basically means that Democrats will be forfeiting any chance of any reasonable treatment in the future to the wind, and the fact of the matter is Republicans are both better-disciplined than Democrats and in the majority, so the Senate become a pretty much straight party-line body from that point forward. The Era of Bad Feelings will be fully underway.4 Is that what we really want the Senate to be?5
Phrased alternatively, after a maneuver like this, could the well ever be un-poisoned?
Consider this before you address this concern about the Senate, whether you’re a Republican or a Democrat or something else: Justice Ruth Bader Ginsburg is 83 years old, and while currently able to serve, has gone through several episodes of uncertain health in the past few years. The chances are pretty good that President Trump will nominate her successor in his first (and hopefully only) term in office. Recall further: frequent swing vote Anthony Kennedy is 80 years old.
It seems anti-democratic, but as we’ve been reminded a lot recently, we live in a republic, not a democracy. Which means that sometimes, a counter-democratic result is the legally valid one. Sort of like electing a President who does not have even a plurality of the votes of the American people because that’s how our Electoral College works. It would be a Hail Mary pass thrown as the clock runs out (by the backup quarterback, no less). A mid-court buzzer-beater shot. A walkoff home run on a full count by an injured batter. And it could change the tone of politics for at least a generation, and not for the better.
Image by DonkeyHotey
- I assume for purposes of this analysis that Republican John Neely Kennedy defeats Democrat Foster Campbell in Louisiana’s runoff election to be held on December 10. As this seat, formerly Republican David Vitter’s, will be vacant on the morning of January 3, 2017 before either Kennedy or Campbell is seated, it doesn’t actually matter, no more than do Tammy Duckworth’s unseating of Mark Kirk or Maggie Hassan’s squeaker unseating Kelly Ayotte.
- “New class” is a misleading term as most of the members of the incoming class are incumbents who were re-elected.
- For that reason, Judge Garland himself may want no part of this plan.
- I wish I had originated that phrase, but some say this has been the state of affairs for the past eight years anyway.
- Vice President Biden has mused that he will not rule out a third run for the Presidency in 2020. In 2021, he will be 78 years old. I don’t think he’s got a realistic shot at the White House anymore: if he does this, it’ll almost certainly be the last act of political significance of his long career.