Here’s a question you probably didn’t expect to hear while the GOP holds the Senate Majority Leader’s office. Can the Democrats use a procedural maneuver to force an up or down vote on Merrick Garland’s nomination to the Supreme Court? Politico digs through the dumpster behind Robert’s Rules of Order and determines that the answer is… maybe. Sort of. Possibly. But not quite. And yet they’ve got Chuck Grassley talking about the possibility.
“There’s nothing we can do about it. Under the rules of the United States Senate, that resolution can be offered anytime,” Grassley told reporters after a Tuesday town hall here, referring to a procedural maneuver called a motion to discharge. “A Republican could offer it.”
The Judiciary Committee chairman candidly acknowledged that the maneuver would put Republicans in a difficult position politically.
“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,” Grassley added.
They’re talking about Senate Rule XVII 4(a) in terms of a motion to discharge. In theory, if Grassley’s committee fails to act on Garland’s nomination, someone could bring up a motion to force the nomination out of committee and then to a full floor vote. So (again, in theory)… sure. It’s possible. And there are already a couple of wavering Republican senators in tight races who might be tempted to support such an action just to show their constituents what gosh golly great team players they are. But it would require more than just one or two turncoats to pull this off.
If Harry Reid launched such a procedure he could indeed call for the nomination to move out of committee during an executive session. But as soon as it was up for consideration, Mitch McConnell (who has at least thus far not shown any signs of caving) could object and call for the motion to be tabled. That only requires a simple majority vote on the floor, so unless the Democrats could come up with five Republicans to go along with them, the motion would essentially be dead on arrival. And even if McConnell failed to have it tabled, the final motion to discharge would still require sixty votes to pass. Things don’t appear so dire at this point that we’re going to lose 14 votes.
Grassley is describing the above scenario as a “difficult vote” for some of the Senators to take, but that’s really just based on the politics of it. Nobody would actually be voting against the confirmation of Garland… simply voting not to approve a procedural maneuver. So in the end, sure… it’s theoretically possible that the Democrats could go full bore on this and try to shove it through, but the deck is stacked against them unless the majority is far weaker than anyone imagines. And a lot of the Republicans who went along with it might be looking over their shoulders during the next primary season if they help put an Obama nominee on the court.