On June 26, 2018, Justice Anthony Kennedy announced his retirement, meaning that (Republican) President Trump will get to make the second Supreme Court appointment of his presidency, to be confirmed by the (also Republican) Senate. Since nothing makes me want to pull out my copy of the US Constitution and dive in for some good old fashioned research like changes to the Supreme Court, I figured it was time for another post.
I was asked the following question:
What can the Democrats do, as a minority party, to delay Senate action on a Supreme Court confirmation until after the 2018 midterm elections? The Republicans could do this in 2016 because they were in the majority. Is there any chance the Democrats would be able to do the same here?
The short answer to this question is “no.” Procedurally speaking, there’s literally nothing the Democrats can do to delay Senate confirmation proceedings. Even though yes, it’s an election year, and yes, Senate Majority Leader Mitch McConnell did say back in 2016 that Supreme Court vacancies should not be filled in an election year.
Here’s the longer version of how it all works.
The Judicial Nomination Process
Without naming any names or expressing any ideological preferences – this is a political explainer blog post, not a hot take! – I’ll use the following scenario. Let’s say it’s the year 2018, a vacancy has just opened on the Supreme Court, and you’re a senator who caucuses with minority party, which holds 49 seats compared to the majority’s 51 seats. For the purposes of this hypothetical, let’s also say that the party in the Senate majority is the same one to which the president belongs. (For the questions regarding confirmation processes, the party makeup of the House of Representatives is completely irrelevant.) As a member of the opposition, you are probably dreading the kind of candidate this hypothetical president is about to nominate, and since Supreme Court justices are appointed for life, you may be wondering what your party can do to prevent that nominee from getting through.
The first place to look for guidance is, of course, the US Constitution. In this case, Article II establishes that the president “shall nominate, and by and with the Advice and Consent of the Senate, shall appoint… Judges of the supreme Court.” Since that’s rather light on details, we’ve settled into what has become a fairly straightforward three-step process. The specific rules for each step have changed over the years, but the basic structure remains as follows:
Step 1: The president nominates a candidate.
Step 2: The Senate Judiciary committee holds hearings, after which they make a recommendation to the full Senate.
Step 3: The Senate debates and votes on whether or not to confirm the nominee.
That’s three steps during which you can try to block this nomination from going forward. Let’s take a closer look.
Step 1: Presidential nomination
If you’re not a member of the president’s party, there’s not a whole lot you can do to affect the first step of the process… at least, not anymore, and not for the Supreme Court. Constitutionally speaking, the president has the right to nominate whoever he (or she! but I’ll go with male pronouns for now because that’s what we’ve currently got) wants to the Supreme Court.
That said, up until the end of the 20th century, the Senate did have an unofficial “blue slip” policy, whereby it wouldn’t begin confirmation proceedings for a judicial nomination unless the senators from that nominee’s home state gave their approval. (Approval was originally given in the form of a signed blue piece of paper, hence the name.) This policy evolved over the years, but at various points, the blue slip process – which was completely informal and never notated in the Senate rules – allowed one or both senators from a nominee’s home state to veto a nomination for any reason. In 2003, however, it was decided that both senators from a nominee’s home state had to disapprove in order for that nomination to be declined by blue slip, and in 2017, Judiciary Committee Chairman Chuck Grassley set a new precedent when he decided to ignore the blue slip process altogether and move forward with the confirmation hearings for David Stras, a nominee to the 8th U.S. Circuit Court of Appeals, over the unanimous protests of his home state senators.
The upshot is this: even if you happen to be the senator from the nominee’s home state, the blue slip policy is probably not going to help you in your attempts to block a judicial nominee. As it was never really used for Supreme Court nominations anyway, though, it’s a largely moot point in this situation anyway. So much for blocking the nomination in Step 1 of the process. Let’s move on.
Step 2: Senate Judiciary Committee review and hearings
Once the president chooses his nominee, the whole thing moves to the Senate Judiciary Committee for review. The Congressional Research Service splits this review process into three parts: (1) pre-hearing vetting, (2) public hearings, and (3) making a recommendation to the full Senate. During the pre-hearing stage, the nominee will be reviewed by committee staff and the American Bar Association, will be asked to fill out questionnaires by members of the committee, and will likely meet with individual senators in private to discuss the nomination. During the next step, the nominee is interviewed by members of the Judiciary Committee, often during a televised public hearing. Finally, the Judiciary Committee will vote on whether to make a positive recommendation to the full Senate (indicating that a majority of committee members approves of the nominee), a negative recommendation (indicating that a majority of the committee actively disapproves), or no recommendation (indicating that the committee is tied or is deciding that if it doesn’t have anything nice to say, it should say nothing at all out of deference to the president). While a negative recommendation or no recommendation does not stop a nomination from receiving a vote, it does indicate to the rest of the Senate that a substantial number of committee members take issue with the nominee.
If you’re in the minority party, there’s not a whole lot you can do at this stage of the process to block the nomination, but this is the step where minority members of the Judiciary Committee can at least make their feelings known. Seats on Senate committees are divided between the parties such that they are proportional to the party makeup of the Senate as a whole (see this totally awesome explainer for more information on how that works), so both parties are guaranteed to at least have a voice in the process. Regardless of party, all members of the Judiciary Committee are entitled to request additional information from nominees during the pre-hearing stage, and while the chairman of the committee generally presides over the hearings, all committee members are allotted an equal amount of time to question the nominee. Similarly, as the final recommendation of the committee is determined by a simple up-or-down vote, there is always a chance (however small it may be these days) that the minority party can push for a negative or no recommendation.
Here, though, it’s worth pausing for a moment to explain a bit of recent history. If the president and the Senate majority share the same party, then this stage should proceed without difficulty. The minimum procedural requirement for moving the nomination process forward is that the committee hold hearings and decide on some form of recommendation – a process which is entirely controlled by the majority-party-appointed Judiciary Committee chairperson. If you’re in the minority party, on the other hand, you may have a seat at the table, but the ability to affect the process is completely out of your reach. Such is life under single-party rule.
As we learned in 2016, though, if the president and the Senate majority are from opposing parties… things may play out very differently. In February 13, 2016, conservative Justice Antonin Scalia died suddenly and unexpectedly, vacating a seat on the Supreme Court nine months before the 2016 presidential election and eleven months before Democratic president Barack Obama was set to leave office. However, the Senate in 2016 was controlled, not by President Obama’s own party, but by the opposing Republicans. Hours after Justice Scalia’s death, Republican Majority Leader Mitch McConnell released a statement which read, “The American people should have a voice in the selection of their next Supreme Court Justice. Therefore, this vacancy should not be filled until we have a new President.” The same night, Judiciary Committee Chairman Chuck Grassley released a similar statement, saying, “Given the huge divide in the country, and the fact that this President, above all others, has made no bones about his goal to use the courts to circumvent Congress and push through his own agenda, it only makes sense that we defer to the American people who will elect a new president to select the next Supreme Court Justice.”
About a month later, on March 16, 2016, President Obama nominated Merrick Garland fill the vacancy, thus completing Step One of the nomination process. In response, Grassley refused to hold hearings, citing as precedent a floor speech made in 1992 by Vice President Joe Biden (then a senator), in which he requested that then-President Bush “consider following the practice of a majority of his predecessors and not – and not – name a nominee until after the November election is completed.” He went on to say that “the Senate Judiciary Committee should seriously consider not scheduling confirmation hearings on the nomination until after the political campaign season is over.” Of course, the context was very different: Biden made his speech in June of 1992, which was four months further into the presidential election cycle than the 2016 scenario, and the Senate had only just finished Clarence Thomas’ nomination process a year earlier. There was also no vacancy at the time – Biden was speaking purely in the hypothetical – and no rule was ever passed to limit when nomination hearings can be held.
Even so, when the divided government of 2016 rolled around, Biden’s words gave Grassley political cover when he refused to schedule hearings on Garland’s nomination. Without hearings, the Judiciary Committee couldn’t make a recommendation to the full Senate, and without a recommendation (and perhaps more importantly, without a majority leader willing to allocate Senate floor time to fully debate and vote on the nomination), no confirmation could take place. The process ground to a halt, and Merrick Garland never got his day in court. The seat remained open until the Senate later confirmed President Trump’s nominee, Neil Gorsuch, on January 31, 2017.
But here’s the main point. This trick only worked because Grassley, McConnell, and the Republicans were in the Senate majority, meaning they had complete control over what got considered in committee, what got debated on the floor, and ultimately, what was even allowed to receive a vote. Had they been in the minority, as the Democrats are now, none of this would have be possible. For better or for worse, the minority party in the Senate is powerless to block a nomination at the Judiciary Committee review stage.
Before we move on, though, there’s one more piece of context that’s worth addressing. You may be wondering why Grassley, McConnell, and the Republicans were so eager to uphold the “Biden Rule” during the 2016 presidential election season, but are willing to led it slide during the 2018 midterm year. It’s a good question, and one to which Democratic Senate Minority Leader Chuck Schumer certainly wanted an answer. Speaking on the Senate floor hours after Justice Kennedy announced his retirement, Schumer reminded the Senate that “people are just months away from determining the senators who should vote to confirm or reject the president’s nominee. Their voices deserve to be heard then. Anything but that would be the absolute height of hypocrisy.”
Unfortunately for Schumer and the Democrats, Grassley disagreed. During a press conference, he gave his opinion on the matter, stating, “I think Biden was pretty clear on that. That Biden rule applied to presidential years and the other thing would be, if you remember back in 2010, I believe it was, that we had a midterm election and Kagan was approved for the Supreme Court. So I think that we’ve got plenty of precedent when to have appointments to the Supreme Court and when not to.” McConnell expressed the same sentiments on the Senate floor when he confirmed, “The Senate stands ready to fulfill its constitutional role by offering advice and consent on President Trump’s nominee to fill this vacancy. We will vote to confirm Justice Kennedy’s successor this fall.”
Step 3: Senate debates and voting
Let’s get back to our hypothetical. Say you’re in the minority party, and you’ve failed to stop the president from nominating a candidate you hate. Over your protests, the Senate Judiciary Committee has hearings and made a recommendation (let’s say a positive recommendation, although it doesn’t really matter) on the nominee. The nomination is now about to be debated and voted on in front of the full Senate, which, in this hypothetical, contains 51 senators in the majority party and 49 senators in your minority party. So it’s got to be now, right? This is the Senate, and the majority doesn’t have the 60 votes necessary to end debate and move on to a full vote. Surely this means you can use the ol’ filibuster trick to continue debating and debating and debating and debating (and debating and debating and debating) until the nomination gets pulled, right?
An aide comes up and reminds you that the year is 2018. Your smile fades. That filibuster might’ve worked a year and a half ago, but not anymore. On April 6, 2017, the Senate rules changed. Under the current interpretation, you only need a simple majority to end debate on Supreme Court nominees, not the normal three-fifths majority to end debate on legislative proposals. You and your fellow minority party members can vote “Nay” when the majority leader motions to end debate, but unless you can convince two or more members of the majority to join you, cloture will be reached and the president’s nominee will be confirmed.
Now, because I’m the particular sort of nerd who finds this stuff fascinating, I looked into exactly how those rules were changed. It turns out that while Mitch McConnell led the Republicans in ending the filibuster for Supreme Court nominees in 2017, he only accomplished the change by following the precedent set by then-Senate Majority Leader Harry Reid in 2013, when he led the Democrats in eliminating the filibuster for all federal nominees other than Supreme Court justices.
Here’s what happened:
Once upon a time, in 2013, the Democrats had a problem. They had a 55-45 majority in the Senate and control of the presidency, but President Obama’s federal judicial nominees kept getting blocked by the Republicans in the Senate minority. By the time mid-November rolled around, there were an unprecedented 59 executive branch nominees and and 17 nominees to the federal judiciary (including three to fill vacancies on the hugely powerful DC Circuit Court of Appeals) awaiting confirmation. Try as they might to pass these confirmations, the Democrats just did not have enough votes to override the Republicans’ repeated filibusters, meaning that debate on these nominees never formally ended and final confirmation votes could not take place. Until Reid had had enough, and decided to “go nuclear” – not by changing the Senate rules, but by changing the interpretation of the Senate rules.
The Senate rules exist, as one might expect, to guide Senate debate, and as rules are fairly useless if they can be changed on a whim, the Standing Rules of the Senate are very clear on the fact that changes to the rules can only be made after two-thirds of all senators present and voting vote for cloture. The rules also state that any senator who has the floor can “raise a point of order” and ask the presiding officer to rule on whether the rules are being followed. You can think of this like a much more boring version of the scene in every court drama ever where a lawyer calls out “Objection!” and the judge responds with either “Sustained!” meaning that the behavior in question is problematic and must be stopped immediately, or “Overruled!” meaning that the behavior in question is perfectly allowable, thank you very much. But whereas the judge in Law and Order: SVU has the final say and the lawyers more or less need to shut up and accept whatever decision is handed down, the Senate has a procedure wherein the ruling of the presiding officer can be challenged and overturned by a simple majority. Once a decision is overturned, the new interpretation of the rules becomes official precedent to be followed in all future uses – thus amounting to a sneaky rules change with only a simple majority vote.
See where this is going?
On November 21, 2013, during a continuation of the filibustered debate on Patricia Millett’s confirmation to the U.S. Court of Appeals for the D.C. Circuit, Reid raised a point of order (i.e., just wanted to double check that interpretation was correct) that “the vote on cloture under rule XXII for all nominations other than for the Supreme Court of the United States is by majority vote.” Since Rule XXII of the Standing Rules of the Senate clearly states that, except where otherwise noted, cloture can only be reached if three-fifths of the senators present vote to affirmatively end debate, the Presiding Officer did not sustain the point of order (aka, told Reid he was completely incorrect, which he was at the time). Reid appealed the ruling, and on a vote of 52 to 48, the way Rule XXII was interpreted changed. Even though the text of the rule has remained the same to this day, it became official Senate policy to disregard the letter of the law and just assume that what Rule XXII was trying to say is that cloture on nominations other than Supreme Court justices can be reached with a simple majority. Thanks to this change, Senate Democrats were able to fill the vacancies in the Obama administration and on the federal courts that the Republicans held open. Also thanks to this change, the Republicans have been able to confirm many of President Trump’s judicial nominees with fewer than 60 votes.
But the 2013 change only covered cabinet and lower court nominations. The filibuster for Supreme Court hung on until April 6, 2017, when Democrats withheld their support for the nomination of Neil Gorsuch and Mitch McConnell used the exact same procedural trick to do away with the 60-vote cloture threshold on Supreme Court nominees once and for all. This time, the majority-minority roles were reversed, but the outcome was the same. Although Rule XXII of the Standing Rules of the Senate still reads that a three-fifths majority is needed to end debate , that rule is now interpreted to mean that confirmation proceedings are exempt from the 60-vote standard, Supreme Court nominees and all.
From your vantage point in the Senate minority, you have probably realized by now that the situation is basically hopeless. At this last stage of the judicial nomination process, there is nothing at all you can do to block a nomination to the Supreme Court. You can (and almost certainly will) vote against the confirmation, but unless you can convince a few of your rival senators in the other party to do the same… that’s it. The Senate debates, cloture is reached, the nominee becomes a confirmed Justice of the Supreme Court… and there’s nothing at all you can do about it.
One more option… sort of
Well, almost nothing. This being the US Government, there is always the option that I will affectionately call BURNING IT ALL DOWN. You see, the Senate is set up such that every action it takes is potentially open to debate. This includes everything from standard legislative business to more trivial things like asking the presiding officer for a few minutes’ extra speaking time or ending the unnecessary roll calls often used to pause “official” business so party leadership can have off-the-record conversations. Because debating all of these minor actions would slow the Senate to an unsustainable crawl, senators can, at any time, ask for “unanimous consent” to set aside a specific rule in the interest of expediting the proceedings.
Unanimous consent works like this: Let’s say you’re trying to make a point about a Supreme Court nominee’s judicial record, and want to use some evidence discussed in an editorial you just read. You may choose to read a quote on the floor, but you think the whole article is pretty great and you want it to be a part of the official record of the proceedings. In this situation, you may ask for unanimous consent to have the article added to the Congressional Record, so when the transcript gets printed, the whole text of the article will appear alongside your words. If nobody objects, the article gets added and the Senate can move on with its day. If one of your colleagues does object, the request is rejected and the Congressional Record will only reflect the section you read aloud. Of course, there would be no reason to object, so you and your editorial should be safe. As one definition puts it, “the principle behind the rule is that procedural safeguards designed to protect a minority can be waived when there is no minority to protect.”
But if a senator or group of senators decided to deny unanimous consent on more important matters, the time costs would skyrocket. By withholding unanimous consent, individual senators can, among many other things, prevent a bill from being taken off or added to the calendar at the last minute, require the full text of an amendment to be read aloud on the floor before it can be voted on, or force the Senate to move through the full, unabbreviated cloture procedure for every action, which would require four days to confirm a nominee and seven days to pass a piece of legislation. Most of the time, if there is any question about whether a motion for unanimous consent will be challenged, the relevant parties (usually the majority and minority leaders) will discuss in advance and wait to ask for unanimous consent until they can be assured of success. But just think – if you thought the Senate was overly deliberative and prohibitively slow with unanimous consent, just think how much worse it could get if every motion for unanimous consent was denied. When I called this the BURNING IT ALL DOWN solution….. I wasn’t kidding.
But here’s the thing: although withholding unanimous consent would slow the daily progress of Senate business to a crawl, it delays rather than stops Senate business and therefore can technically be outlasted (unlike the filibuster, which is impossible to overcome without a three-fifths majority… or a willingness to change the rules entirely). And in this particular instance, withholding unanimous consent would be all but pointless. If you’re in the minority party of a 51-49 Senate, you just do not have the votes to block a Supreme Court nominee, even if you object to every unanimous consent agreement and force the Senate to actually move through every single procedural step of the confirmation process. The process may take days longer than it would have otherwise, but at the end of the cloture period, a vote will take place. Assuming everyone votes along party lines, the minority party will still lose. There may be a time and place for withholding unanimous consent in the hopes of blocking a nomination from going through, but I cannot honestly say that I think this is it.
So… what now?
I’m going to hazard a guess that if you’re reading this, you are probably not actually a member of the United States Senate. If you live in one of the fifty states, you are represented by two senators, both of whom participate in this process and one of whom may be up for election this November. And since there are substantially more of us in the electorate than there are senators, we voters have some powers that they don’t. We can call their local and DC phone lines, we can email them, and we can even use textbots to message them directly and urge them to cast their votes in ways we find acceptable. If we don’t like how they act in the upcoming nomination fight, we can go to the polls on Election Day and vote them out of office.
If there’s one thing you take away from this post, let it be the following point: the majority party in the Senate has all the power when it comes to confirming Supreme Court nominations. If you are represented by senators in that party, by all means get angry, because the margins are narrow and only two need to defect to change the outcome of an otherwise party line vote. But if you are represented by senators who caucus with the minority party (or even if, like me, you are directly represented by the Senate minority leader) you should not and cannot expect them to block a Supreme Court nomination, because procedurally speaking, there’s literally nothing they can do to halt the process. There are better things to be frustrated about than our elected officials failing to pull off the impossible. Given the way the system works, the best and only way to have more of a say in future nomination battles is to help our party win back the majority of the Senate by going out and VOTING on November 6th, 2018.
Just one more thing
Since Justice Kennedy announced on June 26 his plans to retire, I’ve seen screenshots of a tweet by Seth Abramson making the rounds on social media. The tweet was posted at 10:18am on June 28th, and reads as follows:
Anyone else wonder why a man under investigation for participation in the biggest political crime in U.S. history is permitted to choose a judge *who’ll sit on his case* just 120 days pre-election, when a scandal-free POTUS was denied his right to nominate 9 months pre-election?
— Seth Abramson (@SethAbramson) June 28, 2018
This tweet is misleading. For one, while it is certainly possible that any case against Donald Trump might make its way up to the Supreme Court eventually, it is extremely unlikely to originate there. In order to reach the Supreme Court, any case against the president would likely need to pass through at least one and possibly multiple lower courts first. Remember a few sections ago when we talked about how the president’s judicial nominees were being confirmed with fewer than 60 votes? It’s not the Supreme Court you need to worry about if it’s the president you’re after. It’s the lower courts.
More importantly, if your goal is to remove a president from office, the Supreme Court has almost nothing to offer. Impeachment proceedings begin, not in the court system at all, but in the House of Representatives, which is the only body with the power to impeach the president of the United States. But being impeached by itself is like being a charged with a crime that is never prosecuted. Once the House votes to impeach a president, the case is then passed to the Senate, which can, with a two-thirds majority vote, convict the president and remove him from office. While the Chief Justice of the Supreme Court is constitutionally required to preside over Senate impeachment trials, presidential impeachments are considered a purely political procedure and are therefore unrelated to the goings-on of the judiciary.
Right now, in July of 2018, the House, the Senate and the presidency are all controlled by the same party, which, barring unforeseen circumstances, makes impeachment extremely unlikely at this time. The only way to change those odds is to show up on Election Day and VOTE for senators and congresspeople who are willing to vote in favor of impeachment, should the need arise.
Procedurally speaking, the makeup of the Supreme Court has nothing to do with it.