Cross-posted at Burningbird
Crooks & Liars put out an audacious plan, based on twitter posts from Daily Kos' David Waldman.
Send Biden to the Senate on Jan. 3 w Garland's renomination & instructions to recognize Durbin before swearing in. https://t.co/KUNbf8qF8a
— David Waldman (@KagroX) November 25, 2016
The foundation of Waldman's idea is that newly elected senators are not sworn in yet so their positions are vacant. At noon on January 3, previous senatorial terms expire. At that time there are 66 senators whose terms are not expiring: 34 Democrat, 2 independent, and 30 Republican. Therefore, at noon on January 3, Democrats would be in the majority. Following Waldman's line of thought, since there are only 66 senators at noon, it would only require 33 votes to confirm Judge Merrick Garland.
The Vice President presides over the Senate on the first day of a new Congressional session. Established procedure is that the Senate Chaplain opens the session with a prayer, followed by the Pledge of Allegiance. Then, the VP announces the receipt of the certificates of election establishing the eligibility of the newly elected and re-elected Senators. A reading of all the certificates is waived, and the Senators are invited to the front, in groups of four, to be sworn in.
Waldman states that until the Senators take the oath, they're not really members of the Senate. In addition, he also states that since the previous position holders term ends at noon, the positions are temporarily vacant. Therefore, if Joe Biden were to defer acceptance of the certificates of election and the oath giving, and instead recognize Senator Dick Durbin, Durbin can move to nominate Garland. The majority would then suspend the rules, the Democrats and independents could vote Garland in, and voilà! Garland is a Supreme Court Justice.
It sounds good on paper. And it's totally cracked.
For one, Senate rules require one day's notice in order to suspend the rules. They also require a document meticulously outlining which rules to suspend, and why. The only exception would be if all Senators present unanimously agree to the suspension. This isn't going to happen.
In addition, Senate rules related to presentation of credentials gives them precedence over most other Senate business. The few exceptions listed in the rules are related to the timing of the presentation of the credentials. In the case of the first day of Congress, these credentials have already been presented to the Senate before the session even begins. During the opening day procedure the VP lays the certificates out for the members, but they've already been received by the Secretary of the Senate. Since, at the very beginning of the session, no journal reading is occurring, no call for a quorum has been made, no question or motion to adjourn or vote is pending, the VP doesn't have an opening in order to pull this plan off.
Even if we tortuously twist the Senate rules on their head, wringing every last semantically favorable ounce of meaning out of them, we still run into the fact that, according to Section 1 of the 20th Amendment, a Senator's term begins when the previous term expires.
The terms of the President and Vice President shall end at noon on the 20th day of January, and the terms of Senators and Representatives at noon on the 3d day of January, of the years in which such terms would have ended if this article had not been ratified; and the terms of their successors shall then begin.
One of Waldman's followers argued that the Senate term begins, but not the Senator.
— Gracchus (@MortAuxTyrans) December 6, 2016
I do understand what he's saying: a specific Senate term exists even if a Senator dies or has to resign. A replacement Senator is appointed or chosen via a special election to finish out the term. So the term isn't directly tied to an individual.
But in this case, at the beginning of a senatorial term, you can't separate the term from the person. The 20th Amendment reads, "...the terms of their successors begin". It doesn't state that a new term begins, it states the term of the successor begins. It's based on assumption that if all is as it should be, a person is elected senator and they serve a term. The term starts at noon on January 3 and ends at noon on January 3, six years later.
The point is, the Constitution calls for an orderly transition of government. What this implies is that as one President leaves, another enters; as one Senator leaves, another enters. There is no gap, no void.
There is never a vacancy in the Presidency. If the President dies, the Vice President takes over. They're given the oath as soon as possible, but they're President at the moment there is no President.
The only time a true vacancy occurs in the Senate is when a Senator dies, becomes incapacitated, is forced out, or resigns. The vacancy lasts only as long as it takes the Governor of the Senator's state to appoint a replacement or to hold a special election to find a replacement.
True, there is also the assumption that the vacancy isn't literally filled until the person presents their credentials and is sworn into office. But the credential submission and oath taking isn't an absolute requirement when it comes to filling a vacancy. The definitive paper on Senate terms was written by Senate Parliamentarian Robert Dove, in 1984. He noted that if a Senator is elected to fulfill a Senate vacancy currently held by an appointee, and said election is held during a sine die adjournment (the end of year adjournment) , the individual's term begins the day after the election. This, regardless of when they submit their credentials and take the oath. The paper includes instances of people officially becoming Senators (according to their pay stubs) even though they have not presented their credentials nor taken the oath required of all senators.
The Constitution abhors a vacuum. It wants order.
For the nonce, though, let's forget that whole orderly transition thing. Let's assume for the sake of argument that at noon, January 3, there are only 66 senators. The real kicker would be that if the VP did suddenly decide to wield that gavel like Thor's hammer, one of the 30 Republicans whose terms have not expired then suggests the absence of a quorum. At this point in time, the VP has no choice but to direct the clerk to call the roll. Now, whose names do you think will be on this roll? If your answer is the existing Senate members and the newly elected or re-elected members, you'd be correct. Yes, wouldn't that twist things into a knot? How exactly is the Senate supposed to proceed at this point?
Suspend your belief just one minute more, and let's take this exercise out to the end of the gangplank before we drop kick it off.
Let's assume the Senators in the room are so paralyzed by the events that they haven't called the Sargent of Arms to escort VP Biden to the nearest doctor for mental evaluation. Technically, there is a quorum of senators present, even if you limit the pool to the 66 "legitimate" senators. But how does one deal with calling for a vote? All it takes is one-fifth of the quorum members present to demand a roll call vote. Even going by the standard quorum count of 51, this is only 11 senators. So the confirmation vote is by roll call, in which case the clerk would use the roll that lists the newly elected senators.
Then there's the possibility of a filibuster, and the votes needed to end the filibuster. Normally 60 are required, but if we follow Waldman's logic that only 66 senators are present, you'd still need 40 (three-fifths of 66) senators to invoke cloture. And all of this has built in timing. For instance, there's time to debate, there's time to consider cloture, there's time after cloture. This absolute breakage of Senate procedure would take weeks.
I'm a Democrat and I can understand the desperation that goes into a plan like this. Voters in a couple of states had a snit and now we're stuck with another Scalia, at best. A good man like President Obama is denied his right to appoint a Supreme Court Justice because Republicans have abrogated their responsibility to serve all the people of this country.
The appointment of a Supreme Court Justice is the one act our government does that should be apolitical, and free of shenanigans and twisty games. That the Republicans show profound disrespect for the process is no reason for us to do so, too.
Consider the procedures normally followed with an appointment of Supreme Court Justice. During the vetting of a Supreme Court Justice, we in this country have a chance to get to know this person. They're publicly questioned, not to mention investigated by the FBI. All senators have a chance to express their concerns or compliments about the individual because the person we're appointing has to represent all of the country, not just one party. It is an incredibly serious and important process—the only Senatorial actions more important and more solemn are the forced removal of a President or a declaration of war.
Yes, the Republicans brought shame to themselves with their actions, but none of us wins, especially President Obama and Judge Garland, if we Democrats play an even worse game. I have no doubts that both President Obama and Judge Garland would vehemently and resoundingly reject this Senate takeover idea.
Lastly, too many people coached Waldman's idea in terms such as, "If only Democrats had guts...if only they were courageous and aggressive...it takes backbone."
Do we really need to place our elected leaders into this kind of position? That if they don't follow through on a badly conceived idea, they're somehow cowards, and not worthy of our regard? No wonder Democrats lose so many races...with friends and supporters like us, who needs enemies?
We have to, once and for all, stop with the "If only Democrats had guts..." kind of talk. Right now, there is only one enemy and it sure isn't any of the Democrats we have elected to represent us.
Ed. Note: We welcome all points of view here at C&L, and while your editor disagrees with this one, I welcome the discussion and respectful counterpoint. Neither my post nor this one are endorsements of one strategy over another, but I believe the discussion is really important. David Waldman's post expanding on his tweets is here. - Karoli