No, Senate Democrats Can’t Use The ‘Nuclear Option’ To Confirm Merrick Garland

Having watched continued control of the White House slip away, progressive activists are now furiously searching for ways to rescue Merrick Garland’s nomination to the U.S. Supreme Court before President-elect Donald Trump takes office. Unfortunately for these activists, their latest scheme to install Garland, who was nominated to the Supreme Court by President Obama last March, has absolutely no basis in reality.

The primary torchbearer for this plan is Daily Kos editor David Waldman, who claims that Senate rules allow Democrats to confirm Garland after the current congressional term expires, but before new senators take office.

Here is a brief summary of his plan: After the 114th Congress expires, but before the 2016 class of senators is sworn into the 115th Congress, there will only be 66 senators. Thirty-four of those senators (32 Democrats and two Independents) would then constitute a majority. Vice President Joe Biden, who under the Constitution also serves as the president of the Senate and may therefore serve as the body’s presiding officer whenever he pleases, would refuse to recognize any motions made by Republicans and would grant the floor to Minority Whip Richard Durbin (D-Ill.). Obama would re-nominate Garland to the Supreme Court, the Senate would immediately take up Durbin’s motion to confirm Garland, and then Democrats would use the nuclear option to ram through Garland’s confirmation with only 34 of 100 duly elected senators voting in the affirmative.

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Sounds super clever, right? If you are completely ignorant of how the Senate works, it probably sounds great. If you are remotely familiar with Senate rules, precedents, customs, and procedures, however, it will likely strike you as nonsense. To be clear, this scheme has no basis in reality. To be believed, it requires one to completely ignore the Constitution, the Standing Rules of the Senate, Senate precedent, and basic common sense.

Waldman, to my knowledge, has no actual Senate experience, let alone the kind of experience that would over time have given him some measure of expertise on parliamentary matters. His analysis makes clear his lack of familiarity with the most basic of Senate rules and precedents. While there are countless reasons why his little scheme has no chance of working, let us begin as always with the U.S. Constitution, specifically the Twentieth Amendment, which governs the beginning and end of senatorial terms:

The terms of the President and Vice President shall end at noon on the 20th day of January, and the terms of Senators and Representatives at noon on the 3d day of January, of the years in which such terms would have ended if this article had not been ratified; and the terms of their successors shall then begin.

By custom, Congress convenes on January 3 of even years to begin a new congressional term. By law, however, the term of duly elected senators within a particular class begins precisely at noon on January 3. The terms for new senators begin at the precise moment the terms for the previous senators expires. The 2016 class of the U.S. Senate consists of 34 senators. They become senators not at the whims of Joe Biden or Dick Durbin, but by the combined authority of the U.S. Constitution and the voters who elected them to office. This fact alone nukes the entirety of Waldman’s point, because the alleged gap of time during which he proposes his parliamentary chicanery simply does not exist. At this point, no other arguments need to be made against Waldman’s plan; the plain text of the Constitution utterly destroys it.

In support of his contention, Waldman declares Senate is not a continuous body, and therefore any rules and precedents decided by a previous Senate are moot. As a result, a new Senate (technically one-half of two-thirds of the Senate) can do whatever it wants, unencumbered by previous rules. After waving a magic wand and eliminating any and all rules in his way, Waldman then declares that 32 Democrats and two Independents may then do whatever they so please in the Senate without consequences. (An aside: The notion that the Senate is not a continuing body is absurd on its face, and Waldman’s own plan acknowledges this absurdity: if the Senate does not continue from term to term, then how do those 32 Democrats and two Independents retain the right to do anything in a Senate that ceased to exist, has neither acknowledged their electoral credentials nor sworn them in, and is no longer governed by any rules? Unless the Senate is a continuing body, the internal logic of his scheme collapses under its own weight.)

Waldman’s leap of logic is similar to my foolproof plan for human flight: Step 1) Repeal the law of gravity, Step 2) Fly. He further attributes his absurd logic to Senate Republicans and claims it formed the foundation of GOP efforts to eliminate the filibuster via the so-called nuclear option in 2005:

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.

This could not be further from the truth. In fact, the basis of GOP plans to eliminate the judicial filibuster was not the rejection of the Senate as a continuous body, but an internal redefinition of what constitutes “dilatory” debate. Rather than throwing out more than 200 years of Senate rules and tradition, the GOP plan, which was eventually thwarted by a bipartisan group of 14 senators, was merely to set a new precedent (a specific term of art for Senate parliamentary procedure) that debate meant to prevent an up-or-down vote was “dilatory” under Rule XXII of the Standing Rules of the Senate and therefore out of order. When then-Majority Leader Harry Reid (D-Nev.) and Senate Democrats eliminated the filibuster for certain judicial nominees in 2013, they used the same rationale and procedure. Rather than re-writing rules, they merely changed Senate precedent with a majority vote.

Contra Waldman, not only did Senate Republicans not plan to use the “Senate is not a continuous body” rationale to upend the rules, it wasn’t even Senate Republicans who first proposed it. As parliamentary experts Martin B. Gold and Dimple Gupta noted in 2004, that argument was most recently used in 1979 not by Republicans, but by Sen. Robert W. Byrd (D-W.V.), who was furious that senators were filibustering his proposed rules changes.

As Riddick’s Senate Procedure, the ultimate resource for Senate rules and precedents, states, “Since 1789, the Senate has readopted or made only seven general revisions of its rules[.]” If the Senate were not a continuous body, the Senate would have been required to readopt its rules more than 100 times since it first convened in March of 1789. Byrd never made good on his threat to change the rules with a majority vote when the next Congress convened two months later. He instead used the threat to extract concessions regarding debate of his proposed changes to Senate rules.

In his piece explaining his plan to ignore the constitutional and parliamentary rights of 34 duly elected Senators, Waldman asserts that there is ample historical precedent for what he proposes.”

“This situation has surely occurred before,” Waldman declares. “It’s just never mattered.”

In the years I spent working in the United States Senate, much of it spent crafting arcane parliamentary strategies, not once did the Office of the Parliamentarian allow me to assert a parliamentary precedent without providing a specific citation of the events that led to the precedent. Had there actually been an instance in which a single individual in the Senate disregarded the election certificates of one-third of the entire body in order to waive or amend the Standing Rules of the Senate with a mere 34 votes, surely Waldman would have included it. Surely it would be memorialized in Riddick’s Senate Procedure. Surely there would be historical accounts of that momentous event. That Waldman fails to include any evidence that anything even remotely akin to what he proposes has ever happened is telling.

Nonetheless, the discussion of the nuclear option in 2005 and the actual exercise of it in 2013 was based on changing a Senate precedent, not a Senate rule.

The use of precedents rather than rules changes is an important one, because there is a much higher vote threshold required for Senate rules (changes to precedents are also viewed internally as far less drastic than outright amendment of the rules). To change precedents, only a simple majority vote is required. To suspend the rules, two-thirds of the Senate must vote in the affirmative (a motion to amend the rules requires only a majority vote, but that motion is debatable and requires a two-thirds vote to end debate). Even if you grant Waldman’s cockamamie theory that a single individual has unilateral authority to eliminate the constitutional voting privileges of one-third of the duly elected U.S. Senate for an indefinite period of time, it still fails once you take into account the actual rules of the Senate.

Under Waldman’s plan, rather than swearing in the new class of 34 senators, Biden and Durbin would move to consider Garland’s nomination to the Supreme Court. Only after confirming Garland with 34 votes would Biden recognize the other 34 senators, 22 of whom are Republicans. But that doesn’t work, either. Why?

For starters, presidential nominations may not be considered the same day they are offered. Under Rule XXXI of the Standing Rules of the Senate, consideration of nominees may not occur on the “same day on which the nomination is received, nor on the day on which it may be reported by a committee, unless by unanimous consent.” So there goes the plan for Obama to nominate Garland and for the Senate to confirm him with only 34 votes when the 115th Congress convenes on January 3.

But even if that weren’t the case, Democrats still don’t have the authority or ability to execute Waldman’s plan due to Rule II and Rule XXII of the Standing Rules of the Senate, which govern the precedence of motions in the U.S. Senate. Here’s what Rule II says about the installation of new senators:

PRESENTATION OF CREDENTIALS AND QUESTIONS OF PRIVILEGE

1. The presentation of the credentials of Senators elect or of Senators designate and other questions of privilege shall always be in order, except during the reading and correction of the Journal, while a question of order or a motion to adjourn is pending, or while the Senate is voting or ascertaining the presence of a quorum; and all questions and motions arising or made upon the presentation of such credentials shall be proceeded with until disposed of.

In layman’s terms, the rule states that the right to present the credentials of duly elected senators takes precedence over all other motions, exception a motion to adjourn. What does this mean in practice? It means that as soon as Durbin tried to move to the consideration of Garland’s nomination, the presentation of the credentials of those 34 senators in the 2016 class would take precedence. As a result, there would be no possibility of a confirmation vote for Garland until each of the 34 duly elected senators had been recognized. In short, the Senate may not transact executive or legislative business until each duly elected senator has been received into the body.

There would be no possibility of a confirmation vote for Garland until each of the 34 duly elected senators had been recognized.

Since we’re already here, though, let’s say that none of that matters and that those 34 Democrats could just suspend all the rules and do whatever they wanted. Well, that doesn’t work, either, because the Standing Rules of the Senate can only be suspended by a two-thirds vote. Furthermore, a motion to suspend the rules must be submitted in writing one day prior to the motion being made on the Senate floor.

But since we’re playing a game where we ignore reality, let’s throw all that out the window, too. That leaves us with the following assumptions we have to make to believe this thing will happen as Waldman envisions: Obama will want to re-nominate Garland, Garland will accept the renomination, Biden will go along with the plan to eviscerate the rules of the institution in which he served for several decades, 32 Democratic and two Independent senators (10 of whom hail from states Trump won and will be up for re-election in 2018) will go along with the plan, and Republicans will not retaliate in any way, certainly not by immediately doubling the size of the Supreme Court and stacking the new seats entirely with Republican loyalists.

To call this pure fantasy is to insult fantasy. It is the fire-can’t-melt-steel of parliamentary conspiracy theories. It is fake news of the highest order. The Constitution and the rules and precedents of the Senate make it untenable, and political realities make it impossible. It is simply not going to happen.

In its simplest form, Waldman’s scheme boils down to this: if you assume there are no rules and that Democrats can do whatever they want with no consequences, then Democrats can confirm Garland. Similarly, if you assume that two actually equals three, then you can argue that two plus two does, in fact, equal six. If you ignore the Constitution, Senate tradition, Senate precedents, Senate rules, and basic common sense, then Waldman’s plan probably sounds awesome.

However, if you live in reality and accept the constraints that reality provides, you are left with no choice but to laugh at this desperate attempt to ignore the result of the 2016 elections. Sometimes a fake news bubble, inflated by uninformed online conspiracy theorists, just needs to be burst.

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