Kavanaugh’s Chances in a Democratic-controlled Senate

Molly Reynolds, Congress aficionado and fellow in Governance Studies at the Brookings Institution, recently described the Senate’s next steps to confirm Brett Kavanaugh, President Trump’s pick to replace Anthony Kennedy on the Supreme Court. As detailed by Reynolds, Kavanaugh’s first real test will come in his confirmation hearings before the Judiciary Committee, which are expected to be held in late August or early September. If senators’ questions in those hearings do not reveal any information that could jeopardize Kavanaugh’s chances, his nomination will then move to the full Senate where it will be debated and, eventually, approved.

Assuming Kavanaugh makes it to the Senate floor, his confirmation is all but assured. This is because the chamber’s Democrats are no longer able to prevent him from receiving an up-or-down confirmation vote once there. Filibusters of judicial nominations in general and Supreme Court nominees in particular were effectively eliminated by Democrats in 2013, when they unilaterally ended the ability to use the tactic during consideration of all nominations other than for the Supreme Court, and by Republicans in 2017, when they acted unilaterally to end the ability to use the tactic during consideration of nominations for the Supreme Court. Taken together, the precedents established in these instances reduced the number of votes needed to invoke cloture (i.e. end debate) on presidential nominations from three-fifths of senators duly chosen and sworn (typically 60) to a simple-majority (typically 51). Consequently, the minority’s hopes to block Kavanaugh depend on its ability to keep all 49 Democratic senators united in opposition (improbable) while also persuading at least two Republicans to join them in voting against Trump’s nominee (unlikely).

Even so, it is worthwhile to consider how the confirmation process would play out if Democrats controlled the Senate instead of Republicans. For starters, such a scenario is clearly what the Democrats have in mind as they contemplate ways to delay Senate action until after the November elections and the lame duck session that will almost surely follow. Should they be successful, a Democratic-controlled Senate would be under enormous pressure to give a presumably re-nominated Kavanaugh the “Garland treatment” in 2019. That is, Democrats would be expected to block his confirmation by refusing to hold hearings or otherwise schedule his nomination for a vote. That is how Republicans blocked Merrick Garland, President Obama’s pick to replace Antonin Scalia, in 2016.

Yet the Senate’s Republican minority is not powerless to advance Kavanaugh’s nomination in this scenario over the objections of the Democratic majority. This is because all senators have procedural tools, albeit limited, to force their colleagues to go on the record in favor of blocking a specific presidential nominee by bottling him or her up in the Judiciary Committee. When coupled with the elimination of the judicial filibuster on the Senate floor, the discharge procedure gives the minority leverage to advance nominees they support. Detailing why that is the case also demonstrates that Senate Democrats were not powerless to advance Garland’s nomination, contrary to their assertions both at the time and now. On closer inspection, it turns out that they could have used the discharge process to force votes in relation to the Republican majority’s decision not to consider Garland.

In the event that a Democratic-majority on the Senate’s Judiciary Committee postponed, or otherwise declined to advance, Kavanaugh’s nomination in 2019, Republicans could use discharge process to force action on his nomination. If successful, Kavanaugh would then be discharged from the Judiciary Committee and become eligible for consideration by the full Senate. Yet even if unsuccessful, Republicans’ efforts to discharge Kavanaugh could increase the political pressure on individual Democrats to relent in their obstruction of his nomination. This is because trying to discharge a nominee over the majority’s objections triggers roll call votes in relation to the nominee that can be used as part of a broader advocacy campaign outside the Senate to raise the costs of continued obstruction for Democrats inside the chamber.

The first step to discharging Kavanaugh from a hostile Judiciary Committee is to put the Senate in Executive Session. (“Executive Session” simply denotes the Senate’s procedural posture when it considers international treaties and presidential nominations. “Legislative Session” refers to the Senate’s posture when it is considering legislative business.) If the Senate is not currently in Executive Session, any senator may offer a non-debatable motion to proceed to Executive Session. Because the motion to proceed to Executive Session can’t be debated, the Senate votes on it as soon as a senator makes it. This is the first vote that a senator can force in relation to the majority’s decision to bottle up a presidential nominee in committee.

Once in Executive Session (or if the Senate is already in Executive Session), any senator may introduce a resolution to discharge the Kavanaugh nomination from the Judiciary Committee and ask unanimous consent for its immediate consideration. If a senator objects, one day must elapse under the provisions of Rule XVII before it can placed on the Executive Calendar and thus be eligible for Senate consideration.

Any senator may move to proceed to the discharge resolution once it is on the Executive Calendar. This is a non-debatable motion and making it thus triggers the second vote that a senator can force in relation to the majority’s decision to bottle up a presidential nominee in committee. If approved by a simple-majority of those voting (typically 51), the full Senate then begins debate on the resolution.

Unlike the motion to proceed to Executive Session, and the motion to proceed to a discharge resolution once in Executive Session, the discharge resolution itself is debatable. That means that it can be filibustered. Consequently, three-fifths of senators duly chosen and sworn (typically 60) are needed to end debate pursuant to Rule XXII. (The 2013 and 2017 precedents mentioned earlier apply only to nominations and do not affect Senate consideration of other business in Executive Session.)

If cloture is invoked, the Senate then votes to approve the resolution. A simple-majority of those present and voting is required to pass the resolution. Once approved, the Judiciary Committee can no longer prevent the full Senate from considering Kavanaugh’s nomination.