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Democrats Could Actually Force A Supreme Court Vote

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Senator Charles Ernest “Chuck” Grassley still believes that Merrick Garland should be confirmed to the Supreme Court this year. As a matter of fact, he is certain that he will have to vote on Garland anyway.

The Judiciary Committee chairman predicted in a series of town halls in northwest Iowa this week that Senate Democrats will have to use a certain parliamentary maneuver in order to force a vote on Garland. This is a move that we don’t get to see that often. It would amount to a major affront to Majority Leader Mitch McConnell, who is in charge of the Senate floor.

Grassley told reporters after a Tuesday town hall that there isn’t much they can do about it. He explained that the resolution can be offered anytime, which is allowed under the rules of the United States senate. The resolution refers to a procedural maneuver called a “motion to discharge.”

The Judiciary Committee chairman openly admitted that the maneuver would put the Republicans in a difficult political position. To quote him:

“Whenever they take this vote — whether it would be based on confirming the nomination or whether it’s based on a discharge — it’s still going to be a tough vote.”

The idea, however, is not under active consideration by Senate Democrats, who are currently focused on pressuring Republicans to consider Garland with the usage of standard political channels for Supreme Court nominees. Using a motion would ultimately become a nuclear option of sorts for Democrats. Since their contentious battle to confirm Garland is currently going nowhere, they might be inclined to take drastic measures.

Minority Leader Harry Reid

Minority Leader Harry Reid

This is how it would work: a senator, probably Minority Leader Harry Reid, would propose to discharge Garland’s nomination from the Judiciary Committee during an executive session of the Senate.

Republicans would object, resulting in the motion lying over one day, under Senate rules. At that point, McConnell could move to table the motion – an act that would require a simple majority vote to kill it.

Republicans could block Democrats from trying to enter executive session in the first place, which is something of a standard procedure in cases like this. Bottom line – Democrats would need a simple majority to enter into executive session, but they have control over only 46 votes. Should the Senate reach the point, the motion to discharge ultimately would need 60 votes to succeed.

The Congressional Research Service explained last year that it is quite common for committees to be discharged from noncontroversial nominations by unanimous consent, with the support of the committee, as a means of simplifying the process. On the other hand, it is far less common for senators to attempt to discharge a committee from a nomination by motion or resolution.

Technically, since getting around the Judiciary Committee is the main purpose of a procedural maneuver, you couldn’t exactly call it a vote on Garland’s merits. However, it would effectively serve as a proxy vote to gauge where senators (especially Republicans) stand on Garland’s confirmation.

Teeing up a nomination on the Senate floor would widely be considered a breach of protocol if performed by anyone aside from the majority leader. Using this maneuver would also circumvent a confirmation hearing in the Judiciary Committee, which has been something of a prime goal for Senate Democrats.

The Judiciary Committee chairman first mentioned the motion to discharge during a town hall session in Rock Rapids, Iowa, during which Grassley fielded a number of questions (many of them quite critical) about his stance on advancing Garland’s nomination. He told the crowd that he believes there isn’t no way that Republicans can keep from having a vote. Here’s what he said:

“If [Senate Republicans] think they’re going to avoid this issue entirely under the rules of the Senate, it is impossible because of the various motions that could be made.”

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