Road to the Supreme Court Runs Through Capitol Hill

(This post originally appeared on Legislative Procedure.)

President Donald Trump announced that he will soon nominate someone to replace Justice Ruth Bader Ginsburg on the Supreme Court. Justice Ginsburg passed away last week due to “complications from metastatic cancer of the pancreas.” Even before Trump made his announcement, Majority Leader Mitch McConnell, R-Ky., pledged that the president’s “nominee will receive a vote on the floor of the United States Senate.”

Notwithstanding when President Trump officially nominates someone to replace Justice Ginsburg, senators will eventually consider his nominee pursuant to the Senate’s rules and precedents. Those rules and precedents structure how the confirmation process for Trump’s Supreme Court nominee will unfold inside the Senate by, for example, stipulating that the Judiciary Committee must consider the nomination before the full Senate debates the nominee, and by creating a discharge process if the committee refuses to act on the nomination.


The Constitution empowers the president to act first in the confirmation process. The Appointments Clause (Article II, section 2, clause 2) stipulates,

The President…shall nominate, and by and with the Advice and Consent of the Senate, shall appoint…Judges of the supreme Court.

But the Constitution’s Rules and Expulsion Clause (Article I, section 5, clause 2; “Each House [of Congress] may determine the Rules of its Proceedings”) allows senators to determine how the confirmation process will unfold once the president officially submits a nominee to the Senate for advice and consent. In short, the clause gives the Senate plenary power over its rules and precedents. The clause empowers senators to structure the confirmation process however they desire as long as they do not violate any other constitutional provisions in doing so.


The Senate has adopted several rules and precedents under the Rules and Expulsion Clause to facilitate its consideration of Supreme Court nominations. 


While the president acts first in the nominations process outside the Senate, the Judiciary Committee acts first in the confirmation process inside the Senate (at least in most circumstances). Under Rule XXXI, the Senate refers the president’s nomination to that committee, which has jurisdiction over the Supreme Court and the federal judiciary. The rule stipulates that the committee referral process happens automatically “unless otherwise ordered” by the Senate. In other words, the Judiciary Committee will first consider Trump’s Supreme Court nominee unless the Senate otherwise orders the process differently by unanimous consent or by its changing the rules (e.g., Rule XXXI regulating nominations or Rule XXVI regulating committee jurisdictions).

The Senate’s rules do not specify in great detail what happens when the Judiciary Committee considers a Supreme Court nomination. For example, Rule XXVI simply prohibits the Senate’s Judiciary Committee (along with most of its other committees) from meeting without its prior permission during the first two hours of a daily session. (Senators routinely waive this requirement by unanimous consent.) 


Instead of specifying in detail how the confirmation process shall unfold, the Senate’s rules leave the decision to the senators who serve on the Judiciary Committee. Rule XXVI stipulates, “Each committee shall adopt rules (not inconsistent with the Rules of the Senate) governing the procedure of such committee.” In contrast to the Standing Rules of the Senate, the rules of the Judiciary Committee rules detail the processes by which its members schedule hearings to consider Supreme Court nominees and business meetings to vote on them.


In the modern era, the Judiciary Committee holds hearings(s) to review a nominee’s record before its members meet to vote on reporting the nominee to the full Senate. The rules stipulate, “the Committee shall provide a public announcement of the date, time, place…of any hearing…at least seven calendar days prior to the commencement of that hearing.” The chairman and ranking minority member may schedule hearings without providing seven days’ notice if they jointly determine “that good cause exists to begin such hearing at an earlier date.”


The chairman of the Judiciary Committee may also schedule business meetings (to report nominees) unilaterally “on at least three calendar days’ notice of the date, time, place and subject matter of the meeting.” The chairman may schedule business meetings without providing committee members three-days’ notice “with the consent of the ranking minority member.”


The Judiciary Committee’s rules empower its members to delay a business meeting to decide whether to report a Supreme Court nominee to the full Senate. The rules also require at least nine committee members to be physically present whenever the panel is “transacting business” (e.g., reporting a Supreme Court nomination). And the rules stipulate that two of the nine members present must be members of the minority party. That means that Republicans will need some Democratic cooperation (in terms of being present) to report Trump’s Supreme Court nominee successfully. Absent that, Republicans must change the committee rule requiring minority party members to be present to report a nominee or create a new precedent on the Senate floor that circumvents it.

Provided a sufficient number of committee members are present to conduct business, they may dispose of a Supreme Court nomination in one of four ways. First, committee members may vote to report the nomination to the full Senate with a favorable recommendation that their colleagues confirm the nominee. Second, the committee may vote to report the nomination to the full Senate with an unfavorable recommendation, or a recommendation that their colleagues do not confirm the nominee. Third, the committee may vote to report the nomination to the full Senate with no recommendation on whether the nominee should be confirmed. Lastly, the committee may refrain from taking action altogether. Suppose the Judiciary Committee decides not to take action. In that case, President Trump’s nominee to replace Justice Ginsburg on the Supreme Court cannot progress to the Senate floor unless a senator successfully discharges the committee from the nomination’s further consideration.


Rule XXXI also regulates the process by which senators consider Supreme Court nominations on the Senate floor. The Senate operates in executive session whenever considering executive business (e.g., nominations and treaties). (The Senate operates in legislative session whenever its members consider legislation or legislative business.) Rule XXXI stipulates that “the final question on every nomination shall be, ‘Will the Senate advise and consent to this nomination?'” If a simple majority of the Senate’s members answer in the affirmative (i.e., vote yes), the nominee is confirmed. Senators could filibuster judicial nominations before 2013 and 2017, when Democrats and Republicans, respectively, used the nuclear option to circumvent the Senate’s rules permitting unlimited debate unless three-fifths of senators duly chosen and sworn (typically 60) vote to invoke cloture (or end debate) on the nominee. (The nuclear option is defined here as ignoring, circumventing, or changing the Standing Rules of the Senate with a simple-majority vote in direct violation of those rules.) 

But before senators can cast an up-or-down vote on whether to confirm a nominee, the nomination must first be before the Senate (i.e., under consideration, or debate). And before the Senate can debate a nomination, the nominee must be eligible for floor consideration (i.e., the nomination must be on the Executive Calendar). In most instances, that means that the Judiciary Committee must first report the nomination to the full Senate. If the committee reports the nomination, the nominee is placed on the Executive Calendar. Any senator may then make a non-debatable motion to proceed to begin debate on the nomination. At that point, a simple majority of senators is required to start a debate on the nominee (typically 51).


Suppose the Judiciary Committee decides to take no action concerning a Supreme Court nominee. In that case, any senator may use the Senate’s discharge process to force their colleagues to vote on whether they should begin debate on the nomination. If the senator’s effort is successful, the Senate then discharges the Judiciary Committee from further consideration of the nomination, which is then placed on the Executive Calendar. When that happens, the nominee is eligible for consideration by the full Senate if a simple majority of senators vote to begin debate on it (typically 51).

A senator must take several steps, however, to successfully discharge the Judiciary Committee from further consideration of a Supreme Court nominee. The first step is to put the Senate in executive session. If the Senate is not operating in executive session at the time, 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 simple majority is required for its adoption (typically 51).

Once the Senate is 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 unanimous consent for the resolution’s immediate consideration. If another senator objects to the request, one day must elapse under the provisions of Rule XVII before the discharge resolution is placed on the Executive Calendar and become eligible for Senate consideration.

Once the discharge resolution is on the Executive Calendar, any senator may proceed to its consideration (i.e., try to start a debate on it). That motion is non-debatable. The Senate votes immediately if a senator makes the motion. If a simple majority of senators support the motion to proceed to the discharge resolution (typically 51), the Senate then beings debate on it.

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 senators cannot filibuster the resolution. Consequently, three-fifths of senators duly chosen and sworn (typically 60) are needed to invoke cloture (or end debate) under the provisions of 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 the Senate invokes cloture, senators will eventually vote on whether to approve the discharge resolution itself. A simple majority of those present and voting is required to adopt the resolution (typically 51). If the Senate approves the discharge resolution, the Judiciary Committee can no longer prevent the full Senate from considering the Supreme Court nomination by its inaction.

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Topics: Legislative Procedure