A Step-by-Step Guide to What Happened in the Senate Judiciary Committee

The Senate Judiciary Committee held an executive business meeting last week to dispose of the nomination of Amy Coney Barrett to fill the vacancy on the Supreme Court created by the death of Justice Ruth Bader Ginsburg. Senators made several dueling motions at that meeting. They also debated the legitimacy of the Senate’s confirmation process to review Barrett’s nomination.

Announcing the Schedule

The Judiciary Committee’s rules designate Thursdays at 10 a.m. whenever the Senate is in session as “the regular meeting day [and time] for the transaction of business.” The rules also empower the committee’s chairman to schedule business meetings at other times and/or on different days “on at least three calendar days notice of the date, time, place and subject matter of the meeting.” 

The committee rules also empower its members to postpone Supreme Court nominees (and other business) for up to one week. Committee rule I, paragraph 3 stipulates,  

“At the request of any member, or by action of the Chairman, a bill, matter, or nomination on the agenda of the Committee may be held over until the next meeting of the Committee or for one week, whichever occurs later.”

At the start of Barrett’s confirmation hearings, the chairman of the Judiciary Committee, Lindsey Graham, R-S.C., notified his colleagues that he had scheduled a business meeting to dispose of her nomination on October 15 per the committee’s rules. Graham then announced that he would use his rule-I-paragraph-3 power when the Judiciary Committee assembled on October 15 to postpone Barrett's nomination until October 22. 

The Executive Business Meeting

Graham began the executive business meeting on October 15 by announcing that he held over Barrett's nomination (along with several other nominations and unrelated legislation).

Dick Durbin, D-Ill., interjected that Graham could not postpone Barrett’s nomination because a sufficient number of Democrats were not present.

Paragraph 1 of committee rule III stipulates,

“Seven Members of the Committee, actually present, shall constitute a quorum for the purpose of discussing business. Nine Members of the Committee, including at least two Members of the minority, shall constitute a quorum for the purpose of transacting business. No bill, matter, or nomination shall be ordered reported from the Committee, however, unless a majority of the Committee is actually present at the time such action is taken and a majority of those present support the action taken.”

Yet the Judiciary Committee’s rules (like the Senate’s rules) are not self-enforcing. Rule violations that do not elicit points of order from senators go unenforced. And Durbin did not make a point of order against Graham’s attempt to postpone Barrett’s nomination. He instead made an "official note" that only one Democrat was present. 

Dueling Motions

In response to Durbin’s “official note,” Graham then made a motion to schedule an executive business meeting to dispose of Barrett’s nomination on the following Thursday (October 22) at 1 p.m.

Durbin then protested Graham’s motion, arguing that the committee could not conduct any business under its rules until another Democrat arrived. He then made a motion to adjourn the committee’s executive business meeting.

At that point, two motions were pending before the committee: Graham’s motion to schedule an executive business meeting to dispose of Barrett’s nomination on October 22 and Durbin’s motion to adjourn the committee. Graham ordered the committee clerk to call the roll (i.e., call a vote) on his motion. A second Democrat, Richard Blumenthal, D-Conn., arrived at the executive business meeting during the vote on Graham's motion. The committee adopted Graham’s motion by a vote of 12 to 10. 

After the committee adopted Graham’s motion, it next considered Durbin’s motion to adjourn it. But Durbin withdrew his motion before the committee could vote on it. Voting on it would have been unnecessary because its adoption at that point would not have altered the outcome Durbin was protesting in the first place (i.e., Graham’s attempt to postpone Barrett’s nomination until October 22). 

After Durbin withdrew his motion, Blumenthal moved to postpone Barrett’s nomination indefinitely.

Senators then proceeded to debate the legitimacy of the confirmation process. Several Democratic senators joined Durbin and Blumenthal to participate in that debate.

The Judiciary Committee eventually voted unsuccessfully to approve the Blumenthal motion. It failed by a vote of 10 to 12.

No Point of Order, No Problem

At the beginning of the executive business meeting, Durbin accused Graham of violating the Judiciary Committee’s rules. Specifically, Durbin argued that Republicans were violating committee rule III by postponing Barrett's nomination under committee rule I.

But Durbin did not make a point of order to enforce committee rule III. Had he done so, the committee would have first had to dispose of Durbin’s point of order before it voted on Graham’s motion to schedule an executive business meeting on October 22. By refraining from making a point of order, Durbin made it easier for the outcome he opposed to occur by allowing his colleagues to vote on Graham’s motion without first adjudicating whether it violated the committee’s rules. 

Besides, the committee rules (like the Senate’s rules) are not enforced absent a senator raising a point of order. This dynamic is evident in the Senate’s precedents, which stipulate,

“A report on a nomination to the Senate when acted on by less than a quorum of the committee is not validly before the Senate if challenged before the Senate acts thereon on the grounds that a quorum was not present when it was ordered to be reported.”

The Senate’s consideration of the report/nomination proceeds if a senator does not challenge the report by making a point of order that a quorum was not present. 

Durbin made a motion to adjourn the Judiciary Committee instead of making a point of order against Graham's attempt to postpone Barrett's nomination. Immediately before rejecting Durbin's motion, the committee approved Graham's motion to schedule an executive business meeting to dispose of Barrett's nomination on October 22 at 1 p.m. Had the Judiciary Committee approved Durbin’s motion to adjourn, it would have reconvened for its next executive business meeting on October 22 at 10 a.m. In short, Durbin would have postponed Barrett's nomination for a shorter period than the effort he was opposing.