Kavanaugh Doesn't Need Judiciary's Approval

A late-breaking sexual assault allegation has slowed Senate consideration of the nomination of Brett Kavanaugh to serve on the Supreme Court. Members on the chamber’s Judiciary Committee were scheduled to vote later this week to approve Kavanaugh. But that was before the revelations were made public. Since then, Jeff Flake, R-Ariz., was quick to call for postponing the vote so that the Judiciary Committee can consider the allegations, as well as Kavanaugh’s response. Susan Collins, R-Maine, has since joined Flake in calling for a delay.

Flake’s opposition to a vote raises interesting questions about Kavanaugh’s fate. This is because Republicans have a one-vote majority on the Judiciary Committee. Assuming all Democrats oppose Kavanaugh, Flake’s opposition could be enough to sink Kavanaugh. Or could it?

Senate Rule XXXI governs the consideration of nominations in executive session. The Senate is in executive session whenever it is considering a nomination or treaty, or executive business. (The Senate is in legislative session whenever it is considering legislation, or legislative business.) According to Rule XXXI, “the final question on every nomination shall be, ‘Will the Senate advise and consent to this nomination?’” If a simple-majority of the Senate’s members answer in the affirmative, the nominee in question is confirmed. Without members like Flake and Collins, Kavanaugh doesn’t appear to have a path to confirmation.

Yet even before receiving an up-or-down confirmation vote, the nominee must first be eligible for Senate consideration (i.e. the nominee must be on the Executive Calendar). In most instances, that means that the nominee must first be approved by the committee of jurisdiction. Rule XXXI stipulates, “When nominations shall be made by the President of the United States to the Senate, they shall, unless otherwise ordered, be referred to appropriate committees.” And Rule XXVI specifies that a committee majority is required to report “a measure or matter.” In Kavanaugh’s case, the appropriate committee is the Judiciary Committee, of which 11 members constitute a majority. And without Flake’s support, Kavanaugh doesn’t appear to have the 11 votes needed to make it past the Judiciary Committee.

But Flake’s opposition to approving Kavanaugh in the Judiciary Committee does not necessarily mean that he will not receive a confirmation vote on the Senate floor. Specifically, the committee may vote to advance Kavanaugh unfavorably or without a recommendation. All that is required to do so is the support of a simple-majority (11) of the committee’s members. Rule XXVI stipulates, “Action by any committee in reporting any measure or matter…shall constitute the ratification by the committee of all action theretofore taken by the committee with respect to that measure or matter.” In other words, all that matters is that a majority of the members on the Judiciary Committee vote to move Kavanaugh’s nomination to the full Senate for further consideration. From the perspective of a confirmation vote, whether the committee reports his nomination favorably, unfavorably, or even without a recommendation, is immaterial.

Of course, Flake could also oppose advancing Kavanaugh’s nomination with an unfavorable recommendation (or with no recommendation). Yet even then, Kavanaugh still has a path to a confirmation vote.

In the event that a majority of the Judiciary Committee refuses to advance Kavanaugh, any senator can use the discharge process to force action on his nomination. If successful, the Judiciary Committee would then be discharged from further consideration of his nomination and it would be placed on the Executive Calendar, thereby becoming eligible for consideration by the full Senate. 

A number of steps are required to successfully discharge Kavanaugh. The first step is to put the Senate in executive session. 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, or filibustered, the Senate votes on it as soon as a senator makes it.

Once in executive session (or if the Senate is already in executive session), any senator may introduce a resolution to discharge the Judiciary Committee from further consideration of Kavanaugh’s nomination 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.

Once the discharge resolution is on the Executive Calendar, any senator may then move to proceed to it. This is also a non-debatable motion; making it triggers an immediate vote. 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 invoke cloture (or end debate) pursuant to Rule XXII. (The 2013 and 2017 nuclear option precedents 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 discharge 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.

It is also important to note that the Senate’s precedents acknowledge the president’s power to withdraw a nominee after he or she has been reported by the committee of jurisdiction and is on the Executive Calendar awaiting consideration by the full Senate. And Rule XXXI also limits the time available for the Senate to confirm Kavanaugh. Specifically, it stipulates, “Nominations neither confirmed nor rejected during the session at which they are made shall not be acted upon at any succeeding session without being again made to the Senate by the president.” That means that regardless of what happens in November, President Trump will have to re-nominate Kavanaugh in January if the Senate does not confirm him.