Democrats have few options without Feinstein

The extended absence of Dianne Feinstein, D-Calif., from the nation's capital has frustrated the efforts of Democrats on the Judiciary Committee to advance some of President Biden's judicial nominations to the full Senate for further review. Democrats have a one-vote majority on the committee – eleven Democrats and ten Republicans. But the panel is evenly divided between the two parties in Feinstein’s absence. And Democrats cannot advance a nominee under the Senate’s rules if all ten Republicans oppose the effort.

The Rules

Senate Rule XXVI stipulates, “the vote of any Committee to report a measure or matter shall require the concurrence of a majority of the Committee who are present.” And while the Judiciary Committee allows its members to vote by proxy, its rules also stipulate that the panel cannot vote to advance a nomination to the full Senate “unless a majority of the Committee is actually present at the time such action is taken and a majority of those present support the action taken.”

These rules empower Republicans to frustrate Democrats’ efforts to advance President Biden’s judicial nominations in two ways. First, all ten Republicans can stop the Judiciary Committee from advancing a nominee merely by boycotting its meetings. This tactic works by depriving the committee of a quorum to do business – that is, to vote on moving a nominee to the full Senate. But the tactic is unlikely to be successful if Democrats are determined to act because it requires at least one Republican to be present at the committee meeting to raise a point of order to enforce the rules if Democrats attempt to ignore them. And Democrats only need one Republican to be present to constitute a quorum for doing business under the committee’s rules.

Second, all ten Republicans can show up and vote against advancing a nominee to the full Senate. This tactic prevents further action because the Judiciary Committee cannot report a nomination on a tie vote under its rules and the Senate’s rules. 

Democrats’ Options

There are three ways Democrats can advance President Biden’s judicial nominations in Feinstein’s absence over Republican objections without ignoring the rules. Two of them require replacing Feinstein on the committee - either temporarily or permanently. One of them requires skipping the committee process altogether.

Temporary Replacement

Democrats initially attempted to temporarily appoint a senator to replace Feinstein on the Judiciary Committee. Rule XXIV stipulates that the Senate appoints members to serve on its committees by “resolution.” However, senators can debate - or filibuster – such resolutions. Democrats would therefore need an “affirmative vote of three-fifths of the Senators duly chosen and sworn” (typically 60 senators) to invoke cloture (i.e., end debate) on a resolution to replace Feinstein temporarily if Republicans decided to filibuster it. And Republicans objected to a unanimous consent request to replace Feinstein temporarily.

Resignation 

Some Democrats have called on Feinstein to resign her seat on the Judiciary Committee, given Republicans' opposition to a temporary replacement. While some Republicans have signaled a willingness to approve a replacement if Feinstein resigned, the effort to fill her seat permanently faces the same hurdles as the effort to fill it temporarily. Republicans can filibuster a resolution to replace Feinstein on the committee. And any Republican can object to a unanimous consent request to appoint another senator to the seat.

Discharge

Democrats can also use the discharge process to force action on any of President Biden’s judicial nominations that the Judiciary Committee does not advance. If successful, the committee would be discharged from further consideration of the nominations. They would be placed on the Executive Calendar, becoming eligible for consideration by the full Senate.

Several steps are required to discharge a nomination successfully. The first step is to put the Senate in executive session. If the Senate is not currently in executive session, any senator may offer a non-debatable motion to proceed to executive session. Because the motion to proceed to executive session cannot be debated or filibustered, the Senate votes on it as soon as a senator makes it. A majority of senators (typically 51) must approve the motion.

Once in executive session (or if the Senate is already in executive session), any senator may introduce a resolution to discharge the Judiciary Committee from further consideration of the nomination and ask for unanimous consent for its immediate consideration. If a senator objects, one day must elapse under Rule XVII's provisions before it can be placed on the Executive Calendar and thus be eligible for Senate consideration.

Once the discharge resolution is on the Executive Calendar, any senator may then move to proceed to it. This is also a non-debatable motion, making it triggers an immediate vote. If approved by a majority of those voting (typically 51), the full Senate begins debating the resolution. 

Unlike the motion to proceed to executive session and the motion to proceed to a discharge resolution once in executive session, the discharge resolution itself is debatable. That means that it can be filibustered. Consequently, three-fifths of senators duly chosen and sworn (typically 60) are needed to invoke cloture (or end debate) under Rule XXII. (The 2013 and 2017 nuclear option precedents apply only to nominations and do not affect Senate consideration of other business in executive session.)

If cloture is invoked, the Senate votes to approve the discharge resolution. A majority of those present and voting is required to pass the resolution. Once approved, the Judiciary Committee can no longer prevent the full Senate from considering the nomination.

The Senate adopted a special procedure in the 117th Congress to ensure that an even split on a bill or nominee at the full committee level did not prevent the full Senate from taking it up. Specifically, the resolution modified the Senate's discharge procedure to expedite it in specific circumstances. If a committee deadlocks on a vote to report a bill or nominee, either party's leader may move to discharge the "measure or matter" on which the tie vote occurred in committee. The procedure expedited that process by limiting floor debate on a discharge motion to four hours “equally divided, with no other motions, points of order, or amendments in order.” The procedure expired at the end of the 117th Congress.

The Takeaway

Democrats have few options to advance President Biden’s judicial nominations over Republican opposition under the Senate’s current rules.