There is one way for Republicans to block KBJ's nomination - will they use it?

There is one way for Republicans to block KBJ's nomination - will they use it?
AP Photo/Carolyn Kaster

Ketanji Brown Jackson’s time in the spotlight has arrived. This week she faces Senate hearings on her nomination to the Supreme Court. She’s a veteran of the Senate confirmation process, though, and will likely glide through it to fill Justice Breyer’s seat when he retires. There is one option available to Senate Republicans if they choose to derail her nomination. The question is, will they use it?

Yesterday I wrote a post about KBJ’s refusal to answer a question posed to her during her meeting with Senate Minority Leader Mitch McConnell. He asked if she would be in favor of court-packing. Does she support increasing the number of justices on the court as many progressive activists do? It’s a legit question because KBJ’s nomination is supported by far-left groups like Justice Democrats that do support court-packing as a way to push through their political agenda. She didn’t answer the question. McConnell told Face the Nation‘s host Margaret Brennan that he will wait to hear her answers to questions posed by the senators on the Judiciary Committee before he makes his decision as to whether he’ll vote for her nomination or not.

In yesterday’s post, I mentioned that KBJ doesn’t need any Republican votes to be confirmed during the vote in the Senate once she is voted out of the committee. I was focused on the full Senate vote, not the committee vote, as I fully expect her to be voted out of committee. But, what if she isn’t? What if Republican senators use Senate Rule 26? It has been suggested that a way for Republicans to hold up her nomination is to use Senate Rule 26, which is a procedural option. The rare opportunity of a 50/50 split Senate and the nuclear option of using a simple majority to pass the nomination that is in force creates the possibility of using Senate Rule 26. Technically, Senate Republicans can stop the move to a vote by the full senate by denying a quorum in the Senate Judiciary Committee. At least one Republican in the Judiciary Committee has to be physically present in order to provide a quorum. If no Republicans show up for the vote in committee, her nomination cannot advance.

It’s an idea that has been floating around. Conservatives who oppose her nomination like to chew on the possibility but it’s very unlikely that Republicans would deny a quorum in committee. I first saw the option explained back in January. Rachel Bovard published an article in The Federalist that serves as a good explainer.

Senate Democrats tried to use Senate Rule 26 during the Amy Coney Barrett nomination and Schumer allowed that move because he knew it would fail. He simply wanted to let the Democrats try in order to appease the far-left, like the Justice Democrats. He fights. It failed because the numbers weren’t favorable for Democrats. At that time, Republicans held a clear majority. Senator Lindsey Graham, chair of the committee, ignored the quorum requirement and the nomination moved to the Senate floor.

Although he technically ignored committee rules, Graham was able to do this without upending any of the Senate’s practices because of one of the Senate’s standing rules: Rule 26, paragraph 7(a)(1), to be precise, the end of which stipulates that “no measures or matter or recommendation shall be reported from any committee unless a majority of the committee were physically present.”

In other words, the text of Rule 26 simply requires that, to be considered on the Senate floor, legislation and nominations must be reported by a majority of members physically present. There is no requirement that minority members participate, just that a physical majority of members is present to vote on the matter.

While the Judiciary Committee rules state that minority members must be present, the standing rules of the Senate, which govern the Senate floor, “cured” Graham’s violation of the Judiciary Committee’s quorum rules, rendering them unenforceable.

However, the provision of Rule 26 that saved Graham in 2020 could now doom a similar Democratic effort in 2022. This is due solely to the fact that the current Senate is tied between 50 Republicans and 50 Democrats.

As Brevard explains, if the current chairman of the committee, Dick Durbin, faced the same circumstance that Graham did and moved the nomination to the Senate calendar anyway, it would be subject to a point of order when the nomination was taken up on a motion to proceed. Democrats would have to suspend Rule 26. That requires a one-day notice and 2/3 of the senators voting yes. When all senators are present, that is 67 votes.

It’s an interesting “what if” to think about but we all know it isn’t going to happen. Republicans don’t play that way. Would Lindsey Graham organize his fellow GOP committee members to boycott the committee meeting when it’s time for the vote? I wouldn’t put money on that bet. He sounds as though he’s perhaps a yes on her nomination. One committee member has been vocal about his concerns about KBJ’s past rulings, especially in child porn cases, and that’s Josh Hawley. He might use Rule 26 as a Hail Mary move but I doubt the others would follow him in that.

Chuck Grassley is the ranking member of the committee. Other GOP members of the Judiciary Committee, besides Hawley, are Graham, John Cornyn, Mike Lee, Ted Cruz, Ben Sasse, Tom Cotton, John Kennedy, Thom Tillis, and Marsha Blackburn. I don’t see Grassley and McConnell getting together and approving denial of a quorum. Remember during the days of the Texas fleebaggers when Democrats in the Texas House of Representatives ran away from voting on election integrity reform legislation instead of doing their jobs? That political theatre went on for months and in he end, the legislation was passed because Republicans have the majority. Nonetheless, national Democrats and groups supported the Texas Democrats and brought them to Washington, D.C. to push for voting rights legislation. It was all a farce but it held up the process.

Republicans don’t fight tough. Yes, I remember Merrick Garland’s nomination. Nonetheless, don’t look for Republicans to go balls to the wall over this nomination. The option is available to them but it won’t be used. If KBJ’s nomination was pulled, don’t you think Biden would nominate someone else who is an equally far-left progressive? Of course he would. And, Democrats are already making any conservative criticism of her into charges of racist and misogynist attacks, as they always do. Her rulings in sentencings are fair game and Republicans should pursue questions about that. It is a part of her judicial record. As I said in yesterday’s post, her appointment to the Supreme Court is a wash. The balance of the court won’t be changed.

Now we wait and see how big of a circus we get with the hearings. It won’t be anything like the hideous behavior the Democrats provided during the hearings for the previous administration’s nominees, we can count on that.

Join the conversation as a VIP Member

Trending on HotAir Video

Jazz Shaw 1:01 PM on May 27, 2023