New Headline: Biden, Senate Democrats Can Replace Justice Stephen Breyer on Party Lines

[Cuthbert Allgood]

Last edited Thu Jan 27, 2022, 11:25 AM - Edit history (1)

Editor’s Note: The original version of this story incorrectly stated that Republicans could use Senate rules to block a Biden Supreme Court nomination. It was based on the author’s incorrect analysis of a May 13, 2021, Congressional Research Service report. The Senate will require a majority of votes to approve Justice Stephen Breyer’s replacement, not 60 votes.

Article Link:

But the nuclear option can go into motion only if the Judiciary Committee reports the nomination to the floor, a procedural move that says whether a majority on the committee recommends the full Senate consider the pick. Well, in a little-noticed backroom deal that took more than a month to hammer out, McConnell and Senate Majority Leader Chuck Schumer agreed to a power-sharing plan in February that splits committee membership, staffs and budgets in half. (A full nonpartisan analysis from the Congressional Research Service regarding the current process for nominees is here.)

Why does this matter? If all 11 Republican members of the Judiciary Committee oppose Biden’s pick and all 11 Democrats back her, the nomination goes inert. (A pretty safe bet in a committee where at least half of the Republican members have White House ambitions of their own.) The nomination doesn’t die, but it does get parked until a lawmaker—historically, the Leader of the party—brings it to the floor for four hours of debate.

A majority of the Senate—51 votes, typically—can then put debate about the issue on the calendar for the next day. But that’s the last easy part. When the potential pick comes to the floor again, it’s not as a nomination. At that point, it’s a motion to discharge, a cloture motion that requires 60 votes. In other words, 10 Republicans would have to resurrect the nomination of someone already blocked in the Judiciary Committee.

[tritsofme]

1. I'm not sure this an accurate description of the agreement.

Why haven’t Republicans been able to use this maneuver to block a single lower court judge?

[Cuthbert Allgood]

2. Because Mitch knows to keep his powder dry.

[tritsofme]

15. Or this guy is wrong.

Can he or you point to lower court judges where the committee divided evenly, but Republicans still supplied sufficient votes to discharge the nominee?

[Cuthbert Allgood]

18. If I were Mitch and had this plan

I absolutely won't stop a lower court nomination. I'd wait to block a SCOTUS nomination. Because if I did a lower one, the agreement would get changed.

[tritsofme]

20. You didn't answer my question.

Last edited Wed Jan 26, 2022, 04:03 PM - Edit history (1)

If this guy’s theory is true, then we should already have sufficient evidence to prove it.

There have been several appellate nominees who split the committee evenly, and still moved onto the floor, something you are claiming requires 60 votes. Can you point us to those votes where at least 10 Republicans voted to move forward? If this guy is right, they must exist.

FWIW, my year old recollection of the agreement was that either leader could bring a nominee to the floor when the committee divided evenly.

[onenote]

35. Except the repubs have tried to block lower court nominations

And they failed because the description of the power sharing agreement you rely on is incorrect.

The discharge motion on a nomination doesn't require 60 votes. It requires a simple majority. And Harris has provided the tie breaking vote on motions to discharge a nomination where the committee was deadlocked on more than one occasion.


A suggestion: don't believe and repeat things you read on the Internet without trying some independent research.

[Celerity]

61. Editor's Note: The original version of this story incorrectly stated that Republicans could use

Senate rules to block a Biden Supreme Court nomination. It was based on the author’s incorrect analysis of a May 13, 2021, Congressional Research Service report. The Senate will require a majority of votes to approve Justice Stephen Breyer’s replacement, not 60 votes.

https://www.google.com/amp/s/sports.yahoo.com/amphtml/republicans-block-stephen-breyer-replacement-185523364.html



Self delete your OP please

[Fiendish Thingy]

7. Exactly- see my post #5 below. Nt

[Scrivener7]

3. Chuck, Chuck, Chuck. SMDH.

[gab13by13]

8. I'm glad you said it first.

Sheldon Whitehouse would make a great majority leader some day.

[tritsofme]

23. He couldn't convince his colleagues to let him be chairman of the Judiciary Committee.

Let’s just say he’s not on a leadership track.

[dsc]

52. that's because he has vastly less seniority than Durbin does

and they use seniority. Leahy and Feinstein removed themselves from contention (Leahy has another committee and Feinstein is too frail). Durbin was third in line and way ahead of Whitehouse.

[tritsofme]

54. Caucus rules would have prohibited Durbin from holding the post, he got a waiver.

Not sure what to tell you if you think Whitehouse is on a leadership track. I imagine it would be news to him.

[dsc]

55. leadership track, likely not

but if he stays around for another 20 years or so, he will get to be chair of a big committee. That is what happens in the Senate.

[elleng]

4. Thanks SO much, for 'explaining' this,

NOT.

[Cuthbert Allgood]

6. Any reason it's wrong?

[Fiendish Thingy]

10. The fact that Biden has had a record number of judges confirmed in his first year

Suggests this theory does not apply to confirmations of judges.

[Cuthbert Allgood]

11. So, maybe Mitch kept the powder dry

so that changes to the agreement weren't made before he had a chance to block a SCOTUS nominee.

[Fiendish Thingy]

14. Maybe, but perhaps not. See #5 below

This will likely be the ultimate test of Schumer’s, and Biden’s, leadership skills.

[onenote]

16. Yes. It ignores the fact that the VP can break a tie on a motion to discharge.

In fact, Harris already has done so on more than one occasion.

The way it works: if there is a tie in the Judiciary Committee, the Committee Chair can transmit a notice regarding that fact to the Secretary of the Senate for publication in the Congressional Record. After that, the Majority Leader can call for a vote on a discharge petition. And if that ends up a tie, the VP can break the tie.

FROM S. Res. 27:

after such notice of a tie vote has been transmitted, the Majority Leader or the Minor- ity Leader may, only after consultation with the Chairman and Ranking Member of the com- mittee, make a motion to discharge such meas- ure or matter, and time for debate on such mo- tion shall be limited to 4 hours, to be equally divided between the two Leaders or their des- ignees, with no other motions, points of order, or amendments in order: Provided, That fol- lowing the use or yielding back of time, the Senate vote on the motion to discharge, without any intervening action, motion, or debate, and if agreed to, the measure or matter be placed immediately on the appropriate Calendar.


Here's a recent example of Harris breaking a tie on a discharge motion for a judicial nominee:
https://www.senate.gov/legislative/LIS/roll_call_votes/vote1171/vote_117_1_00462.htm

[elleng]

19. Principle bad, show them how to 'screw' us.

[madaboutharry]

9. Yep.

All this negativity is giving me a headache.

[Cuthbert Allgood]

12. The old "Hope in one hand..." saying might actually apply.

[Fiendish Thingy]

5. Perhaps there's room for a procedural end run by nominating someone already approved by this Senate

For a lower court.

I believe past presidents have done this for cabinet nominees, so it’s time to make a few Republicans heads explode.

Biden should announce the nominee, note that she has already been approved by this senate previously, and then immediately have her sworn in on the spot.

It’s already a given that the GOP will impeach Biden if they gain control of the house, so Joe should go for broke…

[tritsofme]

22. That's not a thing.

Lower court judges were confirmed to fill a specific vacancy on their court.

[gab13by13]

13. I'm biting my tongue on this one.

[FBaggins]

17. The author doesn't know what he's talking about

He should read the actual power-sharing agreement.

There is no need for a cloture vote on the discharge from the committee because the rules don't allow for one in this case. No cloture vote means no filibuster. Debate is limited to four hours.

As a quick check on your theory - why hasn't McConnell used the strategy for any of the hundreds of nominees that have come up already?

This discharge motion may be debated for a maximum of four hours, equally divided and controlled by the majority and minority leaders. After the expiration (or yielding back) of time, the Senate will vote on the discharge motion, without any intervening action, motion, or debate.

https://sgp.fas.org/crs/misc/R46769.pdf

[Fiendish Thingy]

21. Exactly. So much poor journalism in the rush to be first with analysis. Nt

[tritsofme]

24. Thanks, I knew this was hot garbage.

[Cuthbert Allgood]

39. You do know the author of the article is aware of the 4-hour limit

and addressed it in the article, right? His indication is that the vote itself will still be able to be filibustered. So it's you, a random person on the internet, vs someone who's covered Washington politics for over a decade. Wonder if I'll give any credibility to the journalist for major news organizations?

[FBaggins]

46. No - he didn't address it

He mentioned four hours of debate but does not address that at the end of those four hours there can be no other motion. For some odd reason, he seems to think that the discharge motion is a cloture motion... but provides no support at all.

I suppose we could debate whether a journalism major working for a news organization that ceased to be in any sense "major" several years ago is really a valid source... but it's probably easiest to point out that (unlike him) I actually back up what I say.

Under the regular rules of the Senate, it is unusual for Senators to attempt to discharge a committee by motion or resolution, instead of by unanimous consent, and only a few attempts have ever been successful. 21 Senate Rule XVII does permit any Senator to submit a motion or resolution that a committee be discharged from the consideration of a subject referred to it. The discharge process, however, does not allow a simple majority to quickly initiate consideration of a nomination still in committee. It requires several steps and, most notably, a motion or resolution to discharge is debatable. This means that a cloture process may be necessary to discharge a committee in circumstances not covered in the 117th Congress by S.Res. 27. Cloture on a discharge motion or resolution requires the support of three-fifths of the Senate, usually 60 Senators, and several days of floor time.

https://sgp.fas.org/crs/misc/RL31980.pdf

[obamanut2012]

25. lolz

Concern noted, OP!

[InAbLuEsTaTe]

26. You sho bout that?!

[Mad_Machine76]

27. Is it in Mitch's interest to block Breyer's replacement

as anything other than a matter of "principle"? If he figures out a way to block a nominee and the seat goes unfilled, it just gives us more reason and enthusiasm to vote against Republicans in the midterms and in 2024. Plus, the fact that it ultimately doesn't change the balance of the court. Also, openly attacking African-American women probably won't be a good look on them. Of course, some of them don't really care about how they look but some might think twice. Mitch seems to care more about appearances than some other Republicans.

Just grasping at straws here. All bets are off if Manchin and/or Sinema go GOP or obstruct in some way.

[Voltaire2]

28. Seems to be a pattern here.

[tritsofme]

29. Defeatists spreading false information? I agree, annoying pattern.

[doc03]

30. They will if they can. Would Democrats be able

to get those other 2 Senators even for that?

[tritsofme]

31. You ought to consider deleting this thread. No sense spreading misinformation.

[onenote]

33. Unless that's the objective.

[Cuthbert Allgood]

34. That's a hot take.

How about we stop acting like the Republicans aren't going to do whatever they can to block a SCOTUS nomination. We all acted like Obama's nominee was a sure thing, too.

[tritsofme]

36. So you're not going to remove the misinformation?

Not sure who acted like Garland was a sure thing?

[Cuthbert Allgood]

37. Philip Elliott is expressing a way he thinks the Republicans can block a nominee

He's been covering Washington for Time since 2015. It's not like this is my theory. Maybe he's wrong. I hope he's wrong. But we can't pretend like Mitch doesn't have a plan to stop a nominee.

[tritsofme]

38. He is wrong. It's been definitively proven in this thread. He is getting roasted on Twitter.

If you want to keep a thread spreading known misinformation, that’s your choice, I suppose.

[onenote]

40. And why don't you take down your post, which is plainly incorrect.

You tried to excuse the fact that other judges have been confirmed by suggesting the repubs hadn't tried to block them by deadlocking in committee. Only it turns out that's wrong. They have, and the nominations have gone through because, despite what the article you posted says, it only takes a simple majority to pass a motion to discharge a nomination and Harris can break the tie.


Here are a couple of examples for those more inclined towards accuracy than you seem to be:
https://www.senate.gov/legislative/LIS/roll_call_votes/vote1171/vote_117_1_00462.htm

https://www.senate.gov/legislative/LIS/roll_call_votes/vote1171/vote_117_1_00161.htm

Numerous other motions to discharge have passed with a simple majority without the need for Harris to cast a tiebreaking vote because one or more republicans didn't vote on the discharge motion.

[Cuthbert Allgood]

41. That they haven't done this tactic is not proof that the tactic isn't possible.

That's simply logic and avoidance of fallacy.

[tritsofme]

43. What is so difficult to understand? If the rules worked the way this guy

incorrectly thinks they do, it would have been impossible for the discharge motion to pass with less than 60 votes. The votes linked above are proof this guy is wrong.

[onenote]

44. You're wrong. They have done it and its failed.

There are multiple instances where a nomination has had to go through the discharge process in order to get to the floor because the relevant committee split evenly and where the discharge motion was then passed with a simple majority, even where the majority was achieved by Harris casting a tie-breaking vote.

I've provided links. I'm not sure if you're ignoring them or just don't understand them.

[Torchlight]

53. Your post 41 title is a fallacy in itself (Denying the Antecedent)

See: Mark Sainsbury’s Paradoxes. I love this book. Entire university courses are taught around this book. It’s an absolute classic.

[Fullduplexxx]

32. One more chapter in the book of 'here's why this good thing is very bad'

Why do democrats do this ?

[bigtree]

42. false

...

Link to tweet

[onenote]

45. Thank you. Although I wonder if this will persuade the OP that he's wrong.

[bigtree]

47. who knows

Link to tweet

[William769]

48. This is total BS and you should be ashamed for posting it.

[onenote]

49. +1

[Bleacher Creature]

50. This is flat out wrong.

The power sharing agreement doesn't block Democrats from bringing judicial nominations to the floor, and the discharge motion requires a simple majority, hence the 40+ nominees who have already been confirmed.

Does Time not have a fact checker?

[onenote]

51. Yet, three hours after it was pointed out that the Time article was wrong

the OP hasn't deleted their post.

Makes me go...hmmm.....

[Cuthbert Allgood]

56. Did I miss some rule?

I'm sure it's been alerted in and it's still here. We'll see how it holds up. I hope it all goes smoothly, but it may not be this tactic, but if we are going to pretend that the Repubs will do nothing to block this nomination, we are fooling ourselves.

[onenote]

59. No rule. Just common sense and common courtesy to take down a story you know is false.

And, by the way, the article you posted has been revised with an acknowledgement that the author got it wrong when he said it would take 60 votes to discharge the nomination.

The article is now entitled:"Biden, Senate Democrats Can Replace Justice Stephen Breyer on Party Lines"
https://time.com/6142711/joe-biden-supreme-court-nominee-mitch-mcconnell-stephen-breyer/

If the article has been corrected but you leave up the uncorrected excerpt, it's pretty clear that you are hellbent on spreading disinformation.

[muriel_volestrangler]

63. Well, there's always self-respect. All you have to do is note that Philip Elliott has reversed

and retitled the article "Biden, Senate Democrats Can Replace Justice Stephen Breyer on Party Lines", and the Editor's note says the original article which you've preserved in your unedited OP is "incorrect". They say that twice, just to be clear.

Elliott's article now reads:

With the news that Supreme Court Justice Stephen Breyer will retire when the current term ends this summer, President Joe Biden has the opportunity to nominate a replacement who can be confirmed in the Democratic-led Senate by a majority vote. Even if the Judiciary Committee breaks along party lines, the Senate-negotiated rules provide for a way to usher the new Justice to the bench.
...
The Senate is split 50-50, with Vice President Kamala Harris breaking the tie. A 2013 agreement allows most presidential nominees to be confirmed with simple majority votes rather than a 60-vote, filibuster-proof margin. A 2017 update added Supreme Court nominees at that threshold. Under a power-sharing agreement reached a year ago between Senate Minority Leader Mitch McConnell and Democratic Leader Chuck Schumer, that bare-majority threshold still holds for Supreme Court nominees, according to a May 2021 report by the Congressional Research Service, Congress’ nonpartisan research institute. Biden pledged during the campaign that he would nominate a Black woman to the nine-Justice panel in an historic first.

“If Democrats stay united from the committee through the floor, there is nothing standing between the President’s pick and the bench. Every step requires a simple majority, which they’ll have,” says Matt House, a former top aide to Schumer.

“This should be a political win for Democrats,” says Alex Conant, a Republican strategist who worked in two Senate offices and counts others as clients. “The White House has an opportunity to reset the narrative and add to Biden’s legacy.”

As you can see, he's completely abandoned his previous argument about cloture.

[LetMyPeopleVote]

57. This was discussed on TRMS

According to Senator Klobuchar, this nomination can be sent to the full senate under rule 14

[Polybius]

58. I guarantee that you won't come back in this thread next month and apologize when it's proven wrong

I'd put money on it.

[Celerity]

62. Time already admitted it was wrong, yet the OP still has not been self deleted

https://www.democraticunderground.com/100216289270#post61

Editor's Note: The original version of this story incorrectly stated that Republicans could use
Senate rules to block a Biden Supreme Court nomination. It was based on the author’s incorrect analysis of a May 13, 2021, Congressional Research Service report. The Senate will require a majority of votes to approve Justice Stephen Breyer’s replacement, not 60 votes.

[tritsofme]

60. Crickets crickets 🦗 🦗

Still won’t delete the misinformation, even now that the original source has acknowledged the story as misinformation?

Strange, and rather pathetic decision.

[Cuthbert Allgood]

64. Sorry I'm not on here 24/7.

[LetMyPeopleVote]

65. The GOP cannot block the confirmation of the judge selected by President Biden

Link to tweet

[Cuthbert Allgood]

66. Yeah. I updated all that.