A chance to confirm Merrick Garland on January 3rd?

[Starbuck2239]

From Crooks & Liars:

"David Waldman (KagroX on Twitter) has outlined how they can confirm Judge Merrick Garland on January 3rd for the few minutes that they will be the majority in the Senate. Waldman is a long-standing expert on Senate procedure and political plays. He was one of the first to call for passage of the ACA via reconciliation in the Senate after Scott Brown was elected.

"On January 3, 2017, Democrats will hold the majority in the Senate for a few minutes, until the newly-elected Senators are sworn in. Biden could convene the Senate in those few minutes and call for a vote. The majority could then suspend the rules and vote in Merrick Garland.

"The key here is that VP Biden would have to be willing to convene the Senate and recognize Senator Dick Durbin instead of Mitch McConnell. Durbin moves to re-nominate Garland, and Senate Democrats then vote to confirm him. They will have a quorum for those few minutes.

"It's bold. Garland would be confirmed by 34 Democrats and no Republicans. It will certainly enrage Republicans, but they're already enraged and full of hubris about how they're going to screw Democrats anyway, so what do they really have to lose?

"Not much. It takes courage. It takes a resolve to do what's right for this country, to reclaim the Supreme Court nomination Republicans think they stole from us. It takes backbone.

"Here's where the rubber meets the road. We're not talking about "comity" anymore. We're talking about conviction and confirmation."


http://crooksandliars.com/2016/12/senate-democrats-have-one-shot-saving

[progressoid]

1. Heh.

That would be a nice way to start the year.

[shraby]

3. The republicans would scream and breathe fire, but that's nothing new. They scream and breathe

fire just for practice when nothing is going wrong.

[yeoman6987]

10. I say do it

However, expect nuclear option for everything including budget and all else. If we can live with that then do it.

[Ninga]

2. Balls. That's what it takes. Mich McConnell has no problem referring to his. Nt

[Old Vet]

4. If anyone thinks the repubs wouldnt do the same..........

You got another thing coming. They play take a no holds barred approach like we should.

[mountain grammy]

5. DO IT!

[bucolic_frolic]

6. Swing for the fences

I'm still not clear what they're talking about ... Dems will have the
majority for a few minutes ... the minority party traditionally
opens the session?

Sadly, Merrick Garland is a solid nominee. He's been a pawn in the GOP
end game, and undeservedly so. We do not in this society treat our
best and brightest who have risen through merit to the top of their
profession to such schoolyard brawls.

But if you're going to play hardball the way puddin' puss Mitch McConnell
has played it, you can't be surprised if the other team brings a baseball
bat.

[MichMary]

7. I'm not getting it

Sorry. But the R's currently have 54 seats, so I'm assuming that the outgoing Senators won't be there, correct?? But, even without them, the filibuster is still in place for SC nominees. All that needs to happen is for one of the R's to announce a filibuster, which will last until the new Senate is sworn in, and they are back in the majority.

What am I missing.

[bucolic_frolic]

8. I think this stealth strategy is best kept under wraps

the element of surprise

[Auntie Bush]

19. I think a surprise is already too late. Nt

[Tiggeroshii]

9. A fillibuster would block the new senators as well.

I think?

[MichMary]

11. Maybe,

but the way the filibuster has worked for the past few years (for both sides) is that a Senator announces he/she is filibustering, and the other side sort of shrugs their shoulders, says, "Okay," and moves on to the next agenda item, right?

The only way this would work would be if the Dems insisted on a full filibuster ala "Mr. Smith Goes to Washington." There are a number of reasons this would be a bad thing. Optics, for one. Because of the ol' "what goes around comes around" rule, also.

[PoliticAverse]

16. The filibuster can be eliminated at any time. n/t

[RAFisher]

20. In therory there is time between when a Senators' term ends and a one new begins

So people like Burr, Rubio, Grassley, etc. that won reelection in theory are not Senators until they begin there new term. So somehow the 2/3 of Senators who were not up for reelection could confirm Garland with a simple majority before confirming the 1/3 of senators who won election or reelection. Filibuster rules would not apply because the session has not even started yet.

[MichMary]

22. Okay, thanks!

That makes much more sense.

But, can they vote on a nominee who hasn't made it out of committee?

[FBaggins]

26. That theory is wrong

The new senators' terms begin at noon exactly when the prior terms end. There is no period of time when there are only 66 Senators

[onenote]

35. Right. See the 20th Amendment. Plus there are other reasons it wouldn't work

"...the terms of Senators and Representatives at noon on the 3d day of January, of the years in which such terms would have ended if this article had not been ratified; and the terms of their successors shall then begin."

When the terms of outgoing senators ends, the terms of incoming senators begin.

Other facts to consider:

The election of the senators elected or re-elected last November will have been certified before the Senate convenes on the 3rd.
While it is often said that a senator-elect isn't a senator until he/she has taken the oath of office, you would have a conflict between the provision declaring the terms of the elected/re-elected senators begin at noon on the 3rd of January and the oath requirement. It's worth noting that in the House, new (and re-elected) members vote on the election of the Speaker before they are sworn in en masse.

Finally, whether or not the new and re-elected Senators are considered to be serving as of the moment that the terms of the outgoing Senators expire, a quorum is always 51 Senators. If all Senators are eligible to vote (even if they haven't been administered the oath of office yet), the nomination is defeated. If only the 66 carryover senators can vote (34 Democrats, 30 Repubs, 2 independents), the moment Biden recognized Durbin there would be a demand by a republican for a quorum call. And if 16 of the carryover republican senators refuse to answer the quorum call, that's it, game over.

The reality is that most of the senators who would be sworn in are currently serving -- they were re-elected. And there is no way Biden is going to play a game where those Senators are dis-enfranchised by a gimmick never before tried.

[The Wielding Truth]

12. Do it! We cannot let them usurp Pres. appointment power.

[Gamecock Lefty]

13. Whatever pisses off Republicans makes me happy. DO IT!

[mopinko]

14. it is what's right.

if this asshole survives the recount, he will get his chance to appoint at least one.
do the idiot a favor and save him having to hunt up a qualified justice.

[IronLionZion]

15. Then let us enrage the Republicans

it's important that they feel enraged. They're going to lose big in 2018 and 2020 anyway.

[MichMary]

17. Can we do that

if the nomination hasn't made it through the committee?

[DallasNE]

18. A Little Different Take

The other day I said that President Obama needed to again nominate Judge Garland the first few days of January and that would force the Senate to dispose of his nomination before anyone Trump would name could be considered.

[onenote]

36. So they'd dispose of it by rejecting it or not voting on it.

Do you think they'd hesitate to do so? There would still be a vacancy and Trump could nominate someone and the Senate could take up that nomination and the Trump nomination is confirmed, then there would be no vacancy and the Garland nomination would be moot.

[bhowle]

21. Go for it !

[Loki]

23. Do it.

Just fucking do it.

[DesertRat]

24. I hope they do it!

[ProudProgressiveNow]

25. K&R nt

[TygrBright]

27. I'd love it if they'd go for it. But I don't think they have the guts. n/t

[Shrek]

28. Couldn't this backfire?

The Republicans could respond by expanding the size of the court to 29 members and proceed to approve the nomination of every single entry on Trump's list.

[Sunlei]

31. why not try anyway, whats to lose? garland question is due a WH answer 12/12.

We did a White House request petition about Garland and got enough sigs 100,000 ++ to have an answer from President O. soon.

[heaven05]

29. we'll see

and it's on the calendar.

[Sunlei]

30. I hope our President has more surprises for us before we enjoy him & family full time!

New EO, went out this week and many more clemency saves from 'life in prison'.

plus he has to spend hours & hours helping the unfit one with transition.

[Bucky]

32. Is it shouting "Hey, is that Toni Tenielle?" & then voting while the Republicans are turned around?

I think that's how they repealed Prohibition.

[karadax]

33. The House would just impeach Garland or threaten to.

A Justice can be impeached by congress. Republicans have the numbers to undo any trick play. Then they would use that as a reason to force everything and anything down the pipe.

[davidn3600]

34. The retaliation could be bad

The GOP could remove the filibuster on all legislation.

[Demsrule86]

39. They will anyway...and we need to fight back...

Obama has the right to appoint the justice period...let them impeach if they think they can do it.

[Dem2]

37. Ain't gonna happen

It's not like the conniving Republicans aren't aware of this possibility.

[Cha]

38. Thanks Starbuck

[Seeking Serenity]

40. Can't work. This idea starts with a faulty premise,

to wit, that there's window of time, even brief, when the Senate doesn't have 100 members (save, of course, for a resignation, death, etc.). It always does; it is a continuous body. The outgoing members still hold their seats until the new members assume them. And on January 3, no other motion (except one to adjourn) can be considered in front of the one to present the credentials of the newly elected (or re-elected) members. That motion takes precedence over any motion to confirm a nomination.

Also, since Garland's nomination dies when the Senate adjourns sine die, President Obama would have to renominate him on Jan. 3. But a rule of the Senate states that a nomination can't be considered on the same day it is received by the Senate.

Sorry, but that's the way it is.

[WillowTree]

41. "It's bold." It's also all over the Internet.

Contrary to what some around DU seem to think, the Republicans can, indeed, read and they'll never let this happen.

[Starbuck2239]

42. Yes, of course...

would not like to look like we fight back. It's rude.

[WillowTree]

43. Then by all means, go for it. I'll be watching to see how it works out.

[Starbuck2239]

44. Excellent

You watch. I'll act, and take 10 other actions in the meantime.