What Senate’s 50-50 Split Means for Biden Court Pick: QuickTake

Evenly divided between the two major parties, the U.S. Senate has operated for more than a year under a power-sharing arrangement that gives Democrats a leg up (thanks to Vice President Kamala Harris’s tie-breaking vote) but makes Republicans more than a silent minority. That’s the backdrop as the Senate weighs whether to confirm President Joe Biden’s choice for a lifetime appointment to the Supreme Court. Though Democrats expect their narrow advantage to be enough to confirm Ketanji Brown Jackson, “there are some wrinkles” they have to consider, said Sarah Binder, a political science professor at George Washington University.

1. Can Republicans block the nomination?

On their own, the Senate’s 50 Republicans probably can’t stand in the way of confirmation, but they can slow the process down. They could, for instance, deny a quorum to the Senate Judiciary Committee, which will hold hearings on the nomination and ultimately vote whether to send it to the full Senate. Senate rules dictate that committees need a majority to be “physically present” to recommend a nominee. The committee is evenly divided, with 11 members of each party, as a result of the power-sharing accord between Majority Leader Chuck Schumer, a Democrat, and Minority Leader Mitch McConnell, a Republican. Alan Frumin, who was Senate parliamentarian for nearly two decades, says if all 11 Republicans refuse to show up for the eventual vote, they “could prevent the committee from ordering the nomination reported out of committee.”

2. Has this been tried before?

Senate Republicans used the strategy in February to delay action by the Banking Committee on five Biden nominations to the Federal Reserve. The boycott by Republicans -- who oppose one of the nominees, Sarah Bloom Raskin -- forced a planned vote to be put off. Using the same tactic, Republicans stonewalled Biden’s nomination of Dilawar Syed to be deputy administrator of the Small Business Administration. Republican Senator John Cornyn of Texas, a senior member of the Judiciary Committee, said a boycott is “an extraordinary measure for extraordinarily bad nominations.” The ranking Republican on the committee, Chuck Grassley of Iowa, said his intention is “to show up and do the job that Iowans pay me to do.”

3. Could Democrats work around a boycott?

They certainly could try. If, say, Democrats voted to advance the nomination out of committee while Republicans were gone, Republicans could object on the floor that Senate rules weren’t followed. Even if the current parliamentarian, Elizabeth MacDonough, sides with Republicans that half the committee doesn’t constitute a majority, a unified Democratic caucus and Harris could overrule her. James Wallner, a senior fellow at the R Street Institute and an expert on Senate rules, said he would expect Democrats to win the argument in the end. “The nominee’s already on the floor at that point, and I suspect that it would be easily disposed of, where the Democrats do have the majority,” he said.

4. What happens if the Judiciary Committee ties?

Senate rules dictate a committee must muster a majority to move a bill or nominee to the floor. Should the panel deadlock 11-11, Schumer as majority leader could move the nomination out of committee via an expedited “discharge motion,” which is voted on by the full Senate and requires only a simple majority. Republicans might then be expected to try to filibuster the nomination, or thwart its passage by demanding never-ending debate. But Schumer could move to cut off debate, which would work so long as Democrats suffer no defections. Two of Biden’s nominees to the U.S. Court of Appeals for the Ninth Circuit -- Holly Thomas and Jennifer Sung -- won Senate confirmation this way, after deadlocked votes in committee. “The bottom line is that if a bare majority wants this to be done -- which they do want this to be done -- it will get done,” said Matt Glassman, a senior fellow at Georgetown University’s Government Affairs Institute.

5. Is a 50-50 tie on the Senate floor possible?

Possible, but not inevitable. Republican Senators Lindsey Graham of South Carolina, Susan Collins of Maine and Lisa Murkowski of Alaska voted to confirm Jackson to the D.C. Circuit last year.

6. Couldn’t Harris break a tie?

A vice president has never broken a tie on a Supreme Court nominee. Only in recent years have vice presidents -- Mike Pence in 2018, Harris in 2021 -- broken ties even on lower-court judicial nominations. Harvard Law School Professor Laurence Tribe got criticized by both liberals and conservatives for questioning in 2020 whether the Constitution permits the vice president to break a tie on a Supreme Court appointment. He told Bloomberg Law in February that he didn’t adequately consider the history of vice presidents breaking ties on executive nominations and may revisit his position if it comes up in the confirmation process.

7. What if a Democratic senator is absent?

This has been a heightened worry since Senator Ben Ray Luján of New Mexico suffered a stroke in late January. Barring complications, he is expected to return to the Capitol in March. Covid-19 infections are also a concern: Senator Brian Schatz’s breakthrough infection forced Democrats to postpone consideration of voting-rights legislation in January. While the House permitted members to vote remotely during the pandemic, the Senate requires in-person attendance. One way around this would be for a Republican opposed to the nominee agreeing to “pair” with an absent supporter by voting “present” rather than “no” -- effectively canceling each other out. Murkowski did as much for a fellow Republican, Senator Steve Daines of Montana, when his daughter’s wedding conflicted with the confirmation vote for Justice Brett Kavanaugh in 2018. Senator Mike Rounds, Republican of South Dakota, offered the same leeway to Lujan on final confirmation of Robert Califf as commissioner of the Food and Drug Administration.

The Reference Shelf

• QuickTake explainers on ideas to reform the Supreme Court, the filibuster and the 50-50 Senate.
• The Supreme Court’s docket is filling up with culture-war showdowns.
• Bloomberg Opinion columnist Ramesh Ponnuru hopes Republicans choose to fight Biden’s court pick.

To contact the reporters on this story:
Zach C. Cohen in Washington at zcohen38@bloomberg.net;
Madison Alder in Arlington at malder5@bloomberg.net

To contact the editors responsible for this story:
Seth Stern at sstern22@bloomberg.net

Laurence Arnold

© 2022 Bloomberg L.P. All rights reserved. Used with permission.