With Biden in the chair on Jan. 3, the Senate can confirm a renominated Merrick Garland. Here's how.

[ehrnst]

I'm not familiar with the process - can someone confirm that this is indeed an option?

Here’s an idea to ponder as a sort of closing act for the Obama administration and/or and opening salvo from Senate Democrats: a mechanism for confirming Merrick Garland to the Supreme Court. As we’re all aware, congressional elections in November determined the makeup of the entirety of the House of Representatives, as well as one-third of the Senate. The Senate, of course, elects one-third of its membership every two years, such that the six-year terms are staggered among three “classes,” and two-thirds of the Senate membership remain incumbent in office even during elections and post-election transition periods.

At noon on January 3, 2017, the terms of the current members of the Senate’s Class III will come to an end. At that point, the Senate consists of 66 sitting senators, and we would ordinarily expect Vice President Joe Biden, in his capacity as Senate president (in which role he continues to serve until noon on January 20th), to begin swearing in the senators-elect of the new Class III.

Typically, the swearing-in would be the first order of business, although occasionally there are brief welcoming remarks from the Majority and Minority Leaders, the Majority Leader traditionally being afforded preferential recognition by the presiding officer. That is, he gets to speak first, if anyone has anything to say before things get started.

But when Biden looks out over the Senate floor—in what will likely be one of his last official acts—he’ll see 66 currently sworn and serving senators, 34 of whom will be Democrats, two who are independents, and 30 who are Republicans. At that moment you might wonder, then, just who constitutes the “majority,” and therefore who the Majority Leader actually is. In fact, as the numbers tell us, Democrats will make up the majority of the Senate, and their leader might arguably be entitled to preferential recognition. This situation has surely occurred before. It’s just never mattered. And so in all likelihood, absent some other plan, we would expect Biden to afford that privilege to Mitch McConnell of Kentucky, the current Majority Leader, who’s expected to continue in that role in the new Congress.

Suppose, though, that there is another plan. Suppose Biden instead chooses to recognize the sitting Democrats as the majority, that being the then-current truth of the matter? And suppose, therefore, he chose to recognize the Democratic floor leader first? Now, we all understand that Chuck Schumer of New York is slated to become the Minority Leader in 2017. But at that point, he’s merely one of the 34 senators-elect waiting to take the oath and begin his term. Dick Durbin of Illinois is, at that moment, the highest ranking Democratic floor leader. So suppose Biden were to recognize Durbin first, and grant him the floor for opening remarks?

..................................................

Suppose Durbin, then, being recognized from the floor by Biden, were to seek such a ruling? Given the existing precedent, he’d be likely to get it. Now, suppose further that Biden has carried with him a message from President Obama, renominating Merrick Garland to the Supreme Court (his previous nomination having been returned to the president at the adjournment sine die of the 114th Congress). And having now been notified of that message, and having received the ruling that the Senate was currently proceeding under general parliamentary law, suppose Durbin was to move that the Senate as currently constituted immediately consider the Garland nomination?

Now, here’s where things get difficult: part of the ruling with respect to the Senate’s operation under general parliamentary law was that the Senate could be presumed to be acceding to the continuance of the old, existing rules if it begins to operate under them, thereby acquiescing to their continuance. Arguably, taking up a Supreme Court nomination might be considered such an act, which itself would arguably trigger a sort of magical reestablishment of the previous Senate’s rules.

There are options for dealing with such objections, of course. And they’d have to be careful not to yield the floor at any point, and not to entertain any intervening motions of any kind along the way. And they’d also have to be willing to proceed over the very loud, but still out-of-order objections from Republicans. That’s to say nothing of the Republican sore feelings that would come from Democrats winning the right to fill the SCOTUS seat the entire nation knew belonged to President Obama. But if Senate Democrats can show that the mechanics can work, and that they’re committed to executing the plan, Republicans will have to decide whether they’d just prefer to lose and call foul, or start thinking about a deal.

http://m.dailykos.com/stories/2016/12/6/1606610/-With-Biden-in-the-chair-on-Jan-3-the-Senate-can-confirm-a-renominated-Merrick-Garland-Here-s-how?detail=facebook

[FBaggins]

1. I can confirm that it is NOT an option.

There is no point at which there are only 66 Senators. There is a point where roughly one-third of the Senators have not yet been sworn in. Technically, those new Senators can't vote until they're sworn in. However, there is no legaltly mandated process for swearing in those new senators. If Biden attempts such an end around, they can simply stand up and take the oath right then. There will be no amount of time in which Democrats could run the Senate.

[ehrnst]

3. Thanks for the insight.

I'm not one to share clickbait or things along those lines, but thought I'd throw this at the wall and see what sticks.

All the FB posts on Bernie's fan pages about "FDR was forced to endorse his rival, then went on to win the nomination" made me cringe.

[MsLeopard]

2. Interesting idea

Let's hope the Democrats learned what a spine is from their recent reflections.

[MichMary]

4. Can they confirm

a nominee whose nomination has never made it out of committee?

[cbdo2007]

5. It should have been done by President Obama as an Executive Action but he caved to pressure

from Repubes. That could have arguably been the most important decision of his Presidency and he failed on it, unfortunately.

I love President Obama but that was a big mistake to let the Repubes control this decision for him.