McConnell Can't Block Biden's Judges By Himself

According to a recent report, “Majority Leader Mitch McConnell will have unilateral authority to stifle [President-Elect Joe] Biden’s picks to the federal judiciary” if Republicans retain their Senate majority in the 117th Congress.

But McConnell will not decide Biden's judicial nominations' fate if he is the Senate's majority leader next year. This is because the majority leader does not have the power to block a president's nominees unilaterally. The Senate’s rules do not allow the majority leader to prevent senators from voting on nominations. Consequently, McConnell does not get to decide which nominations the Senate considers unless his colleagues acquiesce to his choice.

Merrick Garland

McConnell takes credit for the Senate’s 2016-decision not to consider Merrick Garland’s nomination to serve on the Supreme Court. However, McConnell did not make that decision unilaterally. He instead helped rally Republicans on the Judiciary Committee to oppose considering Garland. McConnell also benefited from Democrats’ decision not to use the Senate’s rules to discharge the Judiciary Committee from further consideration of Garland’s nomination when the panel refused to act.

McConnell would have been powerless to stop the Senate from voting on whether to consider Garland’s nomination had senators acted differently in the situation.

Confirmation Process Basics

The Senate's rules do not empower any individual senator to veto what nominations their colleagues consider in committee or on the floor. Instead, the rules empower all senators to start and end debates over presidential nominations (judicial and executive).

Rule XXXI

Rule XXXI stipulates that the Senate's presiding officer refer all nominations to the relevant committee of jurisdiction once the president submits them. Under the rule, the committee referral process happens automatically "unless otherwise ordered" by the Senate. Senators may order the process differently by passing a resolution - which can be filibustered - or by adopting a unanimous consent agreement (to ignore the rules) - which requires all senators to agree on the new process.

The rule does not give the majority leader special powers to unilaterally control the committee referral process. 

Rule XXVI

Rule XXVI stipulates that a majority vote of a committee’s members is needed to send a presidential nomination to the full Senate for further consideration. The rule does not require the majority leader to sign off on nominees before they can proceed to the next stage in the confirmation process. It instead prohibits the majority leader from voting for or against nominees in committees on which the majority leader does not serve. And it gives the majority leader's vote the same weight as the votes of every other senator on the committees on which the majority leader does serve. (Note: McConnell does not currently serve on the Senate’s Judiciary Committee, which has jurisdiction over the federal judiciary.)

Floor Consideration

The majority does not have the power to unilaterally prevent senators from debating presidential nominations on the Senate floor. After a committee reports a nominee, their nomination is placed on the Senate’s executive calendar. (The executive calendar is the list of nominations and treaties that senators may debate.)

Once a nomination is on the executive calendar, any senator - not just the majority leader - may offer a motion to proceed to its consideration. Senators can make the motion at any time, and it cannot be filibustered. In such circumstances, the Senate votes on whether to start a debate on a presidential nomination immediately after a senator – any senator - makes the motion to proceed.

The majority leader also lacks the power to unilaterally prevent senators from trying to end debate on presidential nominations on the Senate floor. All senators – including the majority leader - could filibuster presidential nominations before 2013 and 2017, when Democrats and Republicans, respectively, used the nuclear option to circumvent the Senate's rules permitting unlimited debate unless three-fifths of senators duly chosen and sworn, typically 60, vote to invoke cloture or to end debate on a nominee. Consequently, 51 senators can now schedule a final confirmation vote on a president’s judicial nominations over their colleagues' objections. 

Suppose the majority leader tries to veto the president's nominees by filibustering them. In that case, pro-nominee senators may use Rule XXII to overcome the obstruction by filing a cloture petition signed by 16 senators. As with the motion to proceed, any senator may file a cloture petition, and any senator can sign it.

The Takeaway

Contrary to reports, Majority Leader McConnell can’t block Biden’s judicial nominations by himself. Republicans and Democrats must also act (or refrain from acting) in order for the Senate to not consider Biden’s nominees.