This post is really just an ad to get you to go read Sean Davis’s post at the Federalist, as he’s an expert in Senate procedure and has roughly 37 reasons why this inane idea couldn’t work under the rules of the chamber. To give you a sense of what the left is doing with its time lately during breaks from electoral-college-revolt porn, here’s the argument (as summarized by Davis). Picture it: January 3rd, 2017. The 34 senators who were elected in November are waiting patiently to be sworn in for the new term. But, suddenly — change of plans.
After the 114th Congress expires, but before the 2016 class of senators is sworn into the 115th Congress, there will only be 66 senators. Thirty-four of those senators (32 Democrats and two Independents) would then constitute a majority. Vice President Joe Biden, who under the Constitution also serves as the president of the Senate and may therefore serve as the body’s presiding officer whenever he pleases, would refuse to recognize any motions made by Republicans and would grant the floor to Minority Whip Richard Durbin (D-Ill.). Obama would re-nominate Garland to the Supreme Court, the Senate would immediately take up Durbin’s motion to confirm Garland, and then Democrats would use the nuclear option to ram through Garland’s confirmation with only 34 of 100 duly elected senators voting in the affirmative.
Lotta problems here, as Davis notes. For one thing, since the Senate’s beginning a new term, Obama would need to re-nominate Garland that same day. But there’s a Senate rule that says nominations can’t be taken up on the day they’re introduced without unanimous consent. There’s also a rule that gives a Senator’s presentation of credentials, i.e. the swearing-in of senators, priority over all other business, which suggests that Biden couldn’t properly hold a vote on Garland even if he wanted to while there are 34 newbies standing by waiting to have their oaths administered. Democrats could, in theory, vote to suspend both of those rules, but that requires a two-thirds majority. They don’t have the numbers. And on top of all of that, there’s a basic question of whether the “new” senators actually need to be sworn in before they can take their seats in the chamber or whether they automatically become senators under the Constitution at noon on January 3rd, with the oath of office later administered as a formality. If those 34 automatically take power at noon then the entire argument collapses since at no point would there be a Democratic majority capable of confirming Garland.
The more fun part of this, though, is gaming out ways the GOP could and would retaliate if Democrats really did have a way, and the will, to pull this off. The most obvious remedy is impeaching Garland for having been improperly confirmed. (That in itself would be dubious since justices are supposed to hold their seat during “good behavior” and Garland himself wouldn’t have done anything wrong. But if Democrats are going to play loose with the rules in confirming, the GOP could play loose in unseating him.) That would be no problem in the House, as Republicans have a majority there, but removal from the bench requires a two-thirds vote in the Senate. Could McConnell cajole/threaten 15 Democrats into agreeing with the GOP that Garland’s confirmation was bogus? Probably not: If all 34 Dems/independents from the previous Senate had already voted to confirm him on January 3rd, that would leave just 14 persuadable Democrats in the “new” Senate. That’s not enough, even if McConnell convinced all of them to flip. The impeachment vote would fail and Garland would be on the bench. Unless, of course, he did the honorable thing and simply resigned his seat immediately rather than continue to hold it under a cloud.
The next move, presumably, would be to try to undo the Democrats’ new advantage on the Supreme Court by adding two new seats, both appointed by Trump, and turning SCOTUS into an 11-member bench. Court-packing plans typically don’t work out politically but the GOP would have a solid argument that all they were doing in this case is reclaiming an advantage that was theirs by right after the election. Just to make it extra painful for the left, Trump could choose two fortysomething nominees to try to ensure extra-long Republican control of the Court. But that would hit a snag too: McConnell would have to nuke the entire filibuster in order to prevent Senate Dems from filibustering the new bill expanding SCOTUS to 11 seats. Senate traditionalists wouldn’t like that, but an outraged Republican base would demand it. And the GOP leadership might be angry enough at the Democrats’ chicanery that they’d support getting rid of the filibuster for the rest of the term purely as punishment, with a promise to bring it back in 2019. The GOP would get a lot done over the next two years under those circumstances, starting with a fast-tracked ObamaCare replacement bill.
The real reason this plan would fail politically, though, in addition to Davis’s reasons for why it would fail procedurally, is the identities of those 34 Democrats who are supposedly going to confirm Garland on January 3rd. A huge chunk of those people are facing tough elections in 2018 in states won by Trump. There’s Jon Tester in Montana, Claire McCaskill in Missouri, Joe Manchin in West Virginia, Joe Donnelly in Indiana, Heidi Heitkamp in North Dakota, Bob Casey in Pennsylvania, and Bill Nelson in Florida. Even liberals like Tammy Baldwin in Wisconsin and Sherrod Brown in Ohio would need to think carefully about voting to “steal” Trump’s right to appoint the next justice from him. All McConnell would need to do to defeat a 34/32 confirmation vote for Garland is flip two of those nine Democrats, replete with threats of Trump personally campaigning against them in 2018 if they don’t play ball. Could he get two from that group, bearing in mind that Manchin and Heitkamp have already been floated for cabinet positions in Trump’s administration? Yeah. He could get two.