There is a theory going around leftist blogs about a way for the Senate Democrats to sneak through Merrick Garland as a Suprem Court Justice before the new Republican senators are sworn in. Unfortunately for them, their proposal is delusional.
David Waldman lays out at the uber-leftist Daily Kos that the Democrats could accomplish this on January 3, when the terms of the outgoing senators expire. Normally, Vice President Joe Biden would proceed to swear in the new class of incoming senators. However, Biden could instead slip through Garland using a parliamentary procedure.
Waldman notes that before the new senators are sworn in, the Democrats would briefly have a 34-30 majority in the Senate, so Biden could begin by first giving the floor to Sen. Dick Durbin (D-IL) as the majority leader. Durbin then could get Garland confirmed by a simply majority vote:
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?
Waldman cautions that Durbin would have to do it without yielding the floor or allowing a motion that could disrupt the process, because if the Senate begins using old rules, they would be automatically subject to all of the rules of the previous senate and couldn’t avoid a filibuster.
This wacky idea from Waldman has gotten traction among some leftist blogs–such as Crooks & Liars–but Waldman’s theory does not fit reality. The Federalist’s Sean Davis dismantled it in a series of tweets:
For starters, you don’t get to just make a motion to suspend the rules and then have a vote. Those must be submitted in writing a day prior.
— Sean Davis (@seanmdav) December 6, 2016
Second, motions to suspend the rules are debatable, and 60 votes are required to end debate on a matter.
— Sean Davis (@seanmdav) December 6, 2016
Third, on no planet is the Senate Majority Leader going to cede control of the floor to Dick Durbin or any other member of the minority.
— Sean Davis (@seanmdav) December 6, 2016
Fourth, the notion that previously elected senators must be re-sworn in — the foundation of this silly scheme — has no basis in reality.
— Sean Davis (@seanmdav) December 6, 2016
Fifth, even ignoring the previous four points, it makes no sense for GOP senators to leave and thereby reduce the number needed for 2/3.
— Sean Davis (@seanmdav) December 6, 2016
There is precisely one way Dems can get Garland on the Court — a recess appt. — and it would only be temporary (no more than a few weeks).
— Sean Davis (@seanmdav) December 6, 2016
Then there’s the whole issue that the Senate cannot consider a nomination on the day it is placed on the Executive Calendar.
— Sean Davis (@seanmdav) December 6, 2016
And finally: the presentation/consideration of new senators takes precedence over all motions except the motion to adjourn. Sorry, @KagroX.
— Sean Davis (@seanmdav) December 6, 2016
“B-b-b-but the Senate confirming an Obama nominee takes precedence over swearing in new senators!” LOL no. https://t.co/vTh0rM9EpE pic.twitter.com/6bJHdUMQyd
— Sean Davis (@seanmdav) December 6, 2016
In other words, the Senate rules do not allow for Waldman’s wacky idea to take place. The Senate cannot conduct any business on January 3 before the new senators. But these leftists will hold onto whatever glimmer of hope they have, no matter how unreal it may be because they care more about feelings than facts.