As Cortney wrote this morning, the Senate Judiciary Committee really didn’t have any funny business this go-around. The Democrats tried to delay the vote. Sen. Lindsey Graham (R-SC), chair of the committee, nuked that. Sen. Ted Cruz (R-TX) ripped the Democrats on the committee for their arguments they offered for being against Judge Amy Coney Barrett’s nomination to the Supreme Court. It’s now time for the committee to hear arguments for and against ACB from witnesses. But the lengthy part is now over. The full vote from the committee won’t occur until Thursday, October 22 at 1 pm. Sen. Mitch McConnell (R-KY) said he wants a full floor vote as soon as possible, ideally on October 22, but there’s an issue—and Fox News’ Chad Pergram, who it would seem never sleeps, has a lengthy Twitter thread into how ACB’s nomination goes from here.
Pergram went into some history regarding the committee’s recommendation, reminding people that the Senate Judiciary can and has sent nominees with an “unfavorable” recommendation to the Senate for a full vote; he named Robert Bork as an example. Clarence Thomas is another. He noted McConnell wants a vote for October 23, but here’s where it gets “tricky.”
“If the committee finishes the nomination on October 22, the Senate can’t formally consider it until October 23. Keep in mind, that could begin at 12:00:01 am et Friday if McConnell really wants to hit the gas pedal,” he wrote. “McConnell must move to shift the Senate into executive session (versus legislative session) to specifically consider the Barrett nomination.”
Pergram added that this process requires a vote, but it’s not subject to a filibuster. At the same time, he noted Democrats could create havoc here “by not having a quorum present or demanding a quorum be present.”
Pergram really went into the weeds here, but this could be what occurs in the days ahead should everything go smoothly:
This step to go to executive session requires a simple majority. And once the Senate is in executive session for Barrett, the Clerk “reports” (reads aloud) the nomination before this Senate. There is no “motion to proceed” on this type of nomination, based on a precedent set in the late 1970s by the late Senate Majority Leader [Robert] Byrd [(D-WV)].
Thus, there is no way Dems could filibuster just starting debate on the nomination.
However, Democrats could try to filibuster on the back end. At this stage, McConnell could file cloture to curb debate and overcome a filibuster.
McConnell COULD do this as early as Friday, October 23. Regardless of when McConnell files cloture, by rule, the “cloture petition” (to end debate on the nomination) ripens for a vote after an intervening day.
So, if McConnell files cloture to end debate on Friday, October 23, Saturday, October 24 is the intervening day.
The cloture petition would ripen on Sunday, October 25. By rule, the Senate can begin voting to end debate on the nomination one hour after the Senate meets, following the intervening day.
Again, if they really want to hit the gas, this COULD happen at 1 am et on Sunday, October 25.
But…we don’t know that they will move that expeditiously. It’s more likely the Senate votes to end debate on the nomination on Monday, October 26, or later in the week.
Pergram noted because of these procedural motions, the final vote on Amy Coney Barrett’s nomination will probably fall between October 28-30. The good news is the GOP has the votes. There’s no shaky ground. There are no nonsensical allegations against ACB to deal with; it’s pretty much a done deal.
Happy Halloween, Democrats. We’re filling the seat before Election Day.
1) The Hitchhiker’s Guide to the Schedule to Confirm Barrett
— Chad Pergram (@ChadPergram) October 15, 2020
Here is the likely timetable for the prospective confirmation of Amy Coney Barrett to the Supreme Court.
2) As is custom the committee is holding the nomination over for a week. The Judiciary Committee will again meet to consider Barrett’s nomination at 1 pm et on Thursday, October 22.
— Chad Pergram (@ChadPergram) October 15, 2020
3) The committee will vote to send the nomination to the floor (technically the “calendar,” but that’s another story). A nominee does not have to have a “favorable” recommendation from the committee to go to the floor.
— Chad Pergram (@ChadPergram) October 15, 2020
4) Robert Bork received an “unfavorable” recommendation from the committee in 1987 (and was defeated on the floor). Supreme Court Justice Clarence Thomas was sent to the floor with “no recommendation” in 1991 before being confirmed.
— Chad Pergram (@ChadPergram) October 15, 2020
5) The committee will need a simple majority vote to advance the nomination to the full Senate.
— Chad Pergram (@ChadPergram) October 15, 2020
Senate Majority Leader Mitch McConnell (R-KY) announced today he would put the nomination on the floor on Friday, October 23.
Here’s where it gets a little tricky.
6) If the committee finishes the nomination on October 22, the Senate can’t formally consider it until October 23. Keep in mind, that COULD begin at 12:00:01 am et Friday if McConnell really wants to hit the gas pedal.
— Chad Pergram (@ChadPergram) October 15, 2020
7) McConnell must move to shift the Senate into executive session (versus legislative session) to specifically consider the Barrett nomination. Such a process likely requires a vote – but is not debatable (subject to a filibuster).
— Chad Pergram (@ChadPergram) October 15, 2020
8) That vote could be by roll call, a voice vote or by unanimous consent (so long as there is no objection by any senator). Democrats could create some mischief at this stage by not having a quorum present or demanding a quorum be present – but not helping constitute a quorum.
— Chad Pergram (@ChadPergram) October 15, 2020
9) This step to go to executive session requires a simple majority. And once the Senate is in executive session for Barrett, the Clerk “reports” (reads aloud) the nomination before this Senate.
— Chad Pergram (@ChadPergram) October 15, 2020
10) There is no “motion to proceed” on this type of nomination, based on a precedent set in the late 1970s by the late Senate MajLdr Byrd Thus, there is no way Dems could filibuster just starting debate on the nomination. However, Democrats could try to filibuster on the back end
— Chad Pergram (@ChadPergram) October 15, 2020
11) At this stage, McConnell could file cloture to curb debate and overcome a filibuster. McConnell COULD do this as early as Friday, October 23.
— Chad Pergram (@ChadPergram) October 15, 2020
12) Regardless of when McConnell files cloture, by rule, the “cloture petition” (to end debate on the nomination) ripens for a vote after an intervening day.
— Chad Pergram (@ChadPergram) October 15, 2020
13) So, if McConnell files cloture to end debate on Friday, October 23, Saturday, October 24 is the intervening day. The cloture petition would ripen on Sunday, October 25.
— Chad Pergram (@ChadPergram) October 15, 2020
14) By rule, the Senate can begin voting to end debate on the nomination one hour after the Senate meets, following the intervening day. Again, if they really want to hit the gas, this COULD happen at 1 am et on Sunday October 25.
— Chad Pergram (@ChadPergram) October 15, 2020
15) But…we don’t know that they will move that expeditiously. It’s more likely the Senate votes to end debate on the nomination on Monday, October 26 or later in the week.
— Chad Pergram (@ChadPergram) October 15, 2020
16) Under the provisions of “Nuclear Option II,” (where McConnell established a new precedent - not a rules change - lowering the bar to end a filibuster on Supreme Court nominations from 60 votes to 51 to confirm Justice Neil Gorsuch).....
— Chad Pergram (@ChadPergram) October 15, 2020
17)....the Senate would vote to end debate on the nomination. That entails a simple majority. Once cloture on the nomination is “invoked” (halting a filibuster), debate is then limited to 30 hours.
— Chad Pergram (@ChadPergram) October 15, 2020
18) Once 30 hours have expired, the Senate may take an up or down vote on the nomination itself. It only needs 51 votes to confirm Barrett.
— Chad Pergram (@ChadPergram) October 15, 2020
19) That’s why we believe the actual confirmation of Barrett won’t happen until the middle of end of the week of October 25. Likely sometime between October 28-30.
— Chad Pergram (@ChadPergram) October 15, 2020
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