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A rule in the Senate could potentially stop Democrats from confirming Joe Biden’s nominee to the Supreme Court, according to The Federalist.
With the retirement of 83-year-old Justice Stephen Breyer, Biden is eyeing his first opportunity to fill a vacancy on the high court.
This nominee must face a vote in the Senate for confirmation.
The Senate is currently split between 50 Republicans and 48 Democrats. However, there are two independents who caucus with the Democrats.
Since the Senate is tied, there is “an interesting procedural option” at the disposal of Republicans.
In 2020, Democrats tried the same procedure to attempt blocking Trump’s Supreme Court nomination of Amy Coney Barrett. It failed under those specific circumstances of the Senate.
However, it could be successful this time solely due to the fact that the current Senate is tied between 50 Republicans and 50 Democrats.
Republicans may be able to “deny a quorum in the Senate Judiciary Committee and preventing the nomination from being reported out of committee and placed on the calendar.”
This could potentially block Biden’s nominee from facing a vote on the Senate floor.
Here’s more how the rule works via The Federalist:
In parliamentary practice, a quorum is the number of members that must be present to hold votes and conduct official committee business. By failing to show up to vote on the nomination in committee, Republicans could prevent the nomination from reaching the Senate floor by appealing to the Senate’s Rule 26, which requires that a majority of members, physically present, report the bill out of committee. (The Senate’s Rule 14, which allows senators to bypass committee consideration for legislation, cannot be used for nominations.)
What has made this strategy ineffective in the past — namely, a Senate majority being able to present a numerical majority of their members in committee — is what makes it work in 2022, where the Senate’s committee membership, reflecting the makeup of the Senate, is in a tie…
In other words, the text of Rule 26 simply requires that, to be considered on the Senate floor, legislation and nominations must be reported by a majority of members physically present. There is no requirement that minority members participate, just that a physical majority of members is present to vote on the matter.
While the Judiciary Committee rules state that minority members must be present, the standing rules of the Senate, which govern the Senate floor, “cured” Graham’s violation of the Judiciary Committee’s quorum rules, rendering them unenforceable.
However, the provision of Rule 26 that saved Graham in 2020 could now doom a similar Democratic effort in 2022. This is due solely to the fact that the current Senate is tied between 50 Republicans and 50 Democrats.
— Advertisement — In a 50/50 Senate, committee ratios (the number of Democrats to Republicans) are also tied. This means Senate Democrats on the Judiciary Committee could not, by definition, present a physical majority of members on their own. To meet the requirements of Rule 26, they need Republican help.
