The Senate can’t ignore impeachment

Recent reports that Senate Republicans could give “the Merrick Garland treatment” to articles of impeachment passed by the House are incorrect. The Senate’s Standing Rules do not require that it act on presidential nominations. However, the Senate’s Impeachment Rules stipulate clearly that it must consider articles of impeachment after they arrive from the House. In short, the Senate must hold a trial; senators must act. They cannot give articles of impeachment “the Merrick Garland treatment.”

Standing Rules and Presidential Nominations

The Senate’s Standing Rules do not require senators to consider presidential nominations, even those to fill positions on the Supreme Court. Put differently, the rules empower senators to ignore Supreme Court nominees.

Senate Rule XXXI requires that all presidential nominations be referred to the appropriate committee for review. Significantly, Rule XXXI also envisions situations in which senators do not act on a nomination (as was the case with Garland). It stipulates,

“Nominations neither confirmed nor rejected during the session at which they are made shall not be acted upon at any succeeding session without being again made to the Senate by the President; and if the Senate shall adjourn or take a recess for more than thirty days, all nominations pending and not finally acted upon at the time of taking such adjournment or recess . . . shall not again be considered unless they shall again be made to the Senate by the President.”
— Rule XXXI

(Significantly, the Senate’s rules and practices also permitted Democrats to force a vote in relation to Republicans’ decision to ignore Garland’s nomination.)

Impeachment Rules

In contrast to the Standing Rules governing the confirmation process, the Senate’s Impeachment Rules do not give senators discretion over how to act. They must hold a trial if the House sends them articles of impeachment. When that happens, the Senate must receive the articles and begin impeachment proceedings no later than 1 pm on the following day (Sundays excepted).

Once the trial is underway, it must continue “until final judgment shall be rendered,” or unless otherwise ordered by the Senate. The Senate may adjourn the trial from day to day to consider legislative and executive business. However, the rules stipulate that the trial will resume every day (Sundays excepted) at 12 pm, unless otherwise ordered by the Senate, until a final verdict is reached.

Changing the Rules

Giving articles of impeachment “the Merrick Garland treatment” would require senators to change the Impeachment Rules. That would take a two-thirds majority (of senators present and voting) to end a filibuster of a proposal to do so. Senators could also use the so-called nuclear option to change, or otherwise ignore, the Impeachment Rules. Doing so would require only a simple-majority (of senators present and voting). In either case, senators could not avoid an impeachment trial without voting to change the rules.

Senators may also alter the procedures governing impeachment trials once the proceeding is underway. For example, the Senate passed a resolution (S. Res. 16) at the beginning of the Clinton impeachment trial that authorized a motion to dismiss the articles of impeachment. Yet again, altering the procedures in this way would require a vote of the Senate (i.e., to pass the resolution).