What Happens Now in the Senate Judiciary Committee
(This piece originally appeared in Legislative Procedure.)
After two marathon days of questioning, the Senate Judiciary Committee is poised to complete its review of Amy Coney Barrett’s nomination to fill the Supreme Court’s vacancy created by the death of Ruth Bader Ginsburg. Next, the committee holds an executive business meeting to vote on whether to report Barrett’s nomination to the full Senate for further consideration. Under Judiciary Committee rules, any senator on the committee may delay further action on Barrett’s nomination for up to one week. On Monday, committee chairman Lindsey Graham, R-S.C., announced that he planned to preemptively delay Barrett’s nomination until October 22. After its executive business meeting, the committee will hear testimony from third-party panelists supporting and opposing Barrett’s nomination.
According to Graham, the Judiciary Committee will vote on whether to report Barrett’s nomination to the full Senate on October 22. Senate Rule XXVI authorizes committees to determine how many senators must be present to do business (i.e., set a quorum). The rule also stipulates that “no measure or matter or recommendation shall be reported from any committee unless a majority of the committee were physically present.”
Judiciary Committee rules require at least nine senators to be physically present whenever the panel is “transacting business” (e.g., reporting a Supreme Court nomination). The rules also stipulate that two of the nine members required to be present must be members of the minority party (i.e., Democrats).
Minority Leader Chuck Schumer, D-N.Y., recently indicated that Democrats planned to boycott the Judiciary Committee vote on Barrett. But the move is not likely to delay the nomination. The committee’s rules (like the Senate’s rules) are not self-enforcing. That means that at least one Democrat must be present to make a point of order against Republicans’ efforts to vote on Barrett in violation of Judiciary Committee rules. Suppose a Democratic senator is present to raise the point of order. In that case, the chairman (or any other senator) may make a non-debatable motion to table it. Suppose all Republicans vote to table the point of order. In that case, the committee will have effectively changed its rules to advance Barrett’s nomination to the full Senate.
The Judiciary Committee may dispose of Barrett’s nomination in one of four ways. First, committee members may vote to report her nomination to the full Senate with a favorable recommendation that their colleagues confirm her nomination (the widely expected outcome). Second, the committee may vote to report Barrett’s nomination to the full Senate with an unfavorable recommendation or a recommendation that their colleagues do not confirm her nomination. Third, the committee may vote to report Barrett’s nomination to the full Senate with no guidance on whether she should be confirmed. Lastly, the committee may refrain from taking action altogether.