How Obama's Supreme Court Nominee Can And Can't Be Filibustered

The prospect of Senate Republicans filibustering an Obama Supreme Court nominee seemed remote, especially considering the defection of Sen. Arlen Specter to the Democratic Party.

But in the hours after it was reported that David Souter would be retiring from the Court, Cornell Law School professor Michael Dorf made an interesting observation on how Specter's defection might affect getting a Supreme Court nominee through the Judiciary Committee: The prospect of a filibuster isn't so remote after all.

"Does Arlen Specter's defection from R to D strengthen the President's hand in Congress? Perhaps overall but not on judicial appointments because breaking (the equivalent of) a filibuster in the Senate Judiciary Committee requires the consent of at least one member of the minority. Before today, Specter was likely to be that one Republican. Now what?"

I checked with some Senate sources and historians to get a sense of just how solid Dorf's point was. Their answer: He's correct but ultimately could be proven wrong.

Here's how. As a copy (PDF) of the Judiciary Committee's rules for the 111th Congress clearly shows, a member of the minority party does have to cast a vote in favor of a nominee in order to end committee debate over that nominee.

"The Chairman shall entertain a non-debatable motion to bring a matter before the Committee to a vote. If there is objection to bring the matter to a vote without further debate, a roll call vote of the Committee shall be taken, and debate shall be terminated if the motion to bring the matter to a vote without further debate passes with ten votes in the affirmative, one of which must be case by the minority."

Perhaps more nefariously, Republicans in the Judiciary Committee could hold up a hypothetical nominee simply by not showing up at all. "Six Members of the Committee, actually present, shall constitute a quorum for the purpose of discussing business," read the rules. "Eight Members of the Committee, including at least two Members of the minority, shall constitute a quorum for the purpose of transacting business."

It does seem clear that the GOP has a few maneuvers up its sleeve if they get hysterical about Obama's choice for the Court.

So how could Dorf be wrong? The Majority Leader in the Senate has the power, it seems, to go around the Judiciary Committee's process. A source familiar with the rules of the Senate notes that "a judicial nomination may be discharged from a committee by unanimous consent." However, since -- in this hypothetical scenario -- Republicans are already objecting to the nominee, it seems likely that unanimous consent would fail.

That said, the source adds, "A motion to discharge a nominee from committee is also in order, but if there is objection to that motion, it must lie over a day. On the next day, you move to executive session to the motion to discharge, the vote on proceeding to executive session is majority vote, however, once you are on the motion to discharge it can be filibustered, so you would need 60 votes on the motion to discharge and then presumably on the nomination too."

In short: There is a parliamentary path to getting a stalled Supreme Court nominee out of the Judiciary Committee and to the Senate floor. That process would, like the ultimate confirmation vote, involve getting the 60 votes needed to break a filibuster just to get the nomination to the Senate floor. But with a bigger pool of Republicans (including some of like mind) it would seem likely that the White House could get the 60 votes needed to cut off debate.

Get HuffPost Politics On Facebook and Twitter!

Comments

[Acidic]

09:00 AM on 05/03/2009

The Filibuster process is the whole reason nothing has gotten done since the Civil Rights Movement. Sometimes the counter balance every political junky says we need is a hindrance more than a benefit. Sure it seems nice when everybody is not far from the middle but when opposition is so far to one side of the political spectrum as it is now, the Filibuster is foolish. A majority is a majority. It's funny how logic applies to every facet of life except government.

[SangZe]

10:21 AM on 05/03/2009

Echo.

[iluvsam]

08:38 AM on 05/03/2009

Time to change the rules as they have been abused and have caused nothing to get done in the United States Senate.

[jordan3189]

08:43 AM on 05/03/2009

You do realize those rules are there for a reason, right?

[Acidic]

09:03 AM on 05/03/2009

Reasons that are not valid.

[WTF1956]

08:45 AM on 05/03/2009

Can you sight which rules have been abused?

[WTF1956]

07:26 AM on 05/03/2009

After complaining along with the Republicans over the past eight years on how Bush's nominees were treated, I feel it's time for the Republicans to practice what they preach and go for the Up-and-down vote on each nominee. In my opinion it would be yet another nail in the coffin of the GOP should they do othewise.

I understand the Bush (1st) thought he was appointing a conservative and look what happened.

[Bettysdad]

03:12 AM on 05/03/2009

Republicans have the military, intelligence and police communities behind them.

They can do whatever their desperation leads them to do.

[wacobtc]

11:54 PM on 05/02/2009

Most definitely, Obama should choose Sonia Sotomayer for his justice. Not only is she a woman, latino, and a "left-leaner"... she's also a realist

Looking at Roberts, Aliton, Scalia, etc... she's much needed.

[iplaw]

10:23 PM on 05/02/2009

Seems kinda pointless to filibuster, Obama has 8 years to get a replacement through.

[profco]

08:48 PM on 05/02/2009

One of Saul Alinsky's most effective recommendations was "Make the opposition play by their own rules." So how about this? If the Republicans--and the ones on the Judiciary Committe are the worst of the worst of the ideologues--become impossibly obstreporous and obstructionist with regard to a Supreme Court nominee, here's a possible solution. Just as Specter declared himself a Democrat, leaving only hardliners on the Republican side of the aisle, two Democrats on the Committee (for example, Russ Feingold and Ron Wyden), will declare themselves "Republicans." They will caucus and vote with progressive Democrats on all issues, while providing the Judiciary Committee with what they need in the way of votes from the Republican side of the aisle. They can go back to being Democrats before the election.

Of course this will wreak total havoc with the two party system, especially the Republican party, but it is in shambles anyway, so why not give the Republican party a kick in the groin from within?

[diogeron]

09:13 PM on 05/02/2009

That's friggin' brilliant.

My attitude on this issue, as on Dawn Johnsen's nomination that the GOP is threatening to filibuster is "Fine. Do it." Does the GOP leadership in Congress at 31 percent approval really want to take on Obama on an issue like Johnsen's nomination and if she is correct is saying that waterboarding is torture? It would be great for the Democratic Party if they're stupid enough to do that but it would be awful for the country.

[doodlefarbe]

10:22 PM on 05/02/2009

" Just as Specter declared himself a Democrat, leaving only hardliners on the Republican side of the aisle, two Democrats on the Committee (for example, Russ Feingold and Ron Wyden), will declare themselves "Republicans."

Specter also had to be accepted by the Democratic party to become a Democrat.

[profco]

12:12 AM on 05/03/2009

I'm not certain that you are correct about Republican acceptance being required. I could become a Republican tomorrow (perish the thought!) by changing my party registration, and it wouldn't matter at all whether the Republicans wanted me or not. Not sure how it works with congressional committees--I tried to research it but the information available is limited. I am checking with a constitutional lawyer.

[Danny Donovan]

08:44 PM on 05/02/2009

Can he HAVE a nominee before it's discussed whether or not they will filibuster?

I mean seriously, I understand working for the long term but isn't this kind of like planning to protest colonization of Mars? You don't know when they're going to start, or what your feelings on the matter will be when they do.

Souter isn't resigning until JUNE (the end of june if I remember correctly) So, the nominee most likely won't even be NAMED until like July-ish. So who's to say he's going to pick someone that needs filibustering? I think they need to be more concerned on the re-election plans otherwise it won't matter WHO he picks because the repub candidate won't be serving under them.

[Gidster]

10:06 PM on 05/02/2009

Orin Hatch once stated that a filibuster against a judicial nominee was unconstitutional.
I guess when the Republicans do it that makes it constitutional.

What these buffoons are is delusional!

[Vance1]

08:36 PM on 05/02/2009

For many Canadians, hospital emergency rooms have become their primary doctor -- as is the case with Medicaid patients in the United States. Patients lie in temporary beds in emergency rooms, sometimes for days. At Sainte-Justine Hospital, a major Montreal pediatric hospital, children often wait many hours before they can see a doctor. Surgery candidates face long waiting lists -- it can take six months to have a cataract removed. Heart surgeons report patients dying on their waiting lists. But then, it's free.

[diogeron]

09:19 PM on 05/02/2009

In the U.S., emergency rooms are the primary doctor for the poor, for which the rest of us "subsidize" because we have insurance or can pay for it. It's insane. Everyone knows the emergency room is the most expensive vehicle, yet that's what the poor use in the U.S. while the conservatives oppose some form of national health insurance. If you have money, the U.S. has a great health care system. If not, you would be far better off in France, Canada or Germany, not to mention Sweden, Norway or Denmark.

[Vance1]

08:32 PM on 05/02/2009

Death By Socialized Medicine
By Philip Klein

http://spectator.org/blog/2009/03/17/death-by-socialized-medicine

[MountainPenelope]

12:45 AM on 05/03/2009

And this relates to GOP filibuster of potential Supreme Court nominees?

However, since you brought it up, why are so many Americans traveling to these countries to get health care (particularly surgery)? It's less expensive even when you pay. I have a friend who went to CHINA for back surgery (his surgeon trained at Harvard). The total cost - surgery with PRIVATE room, and a private nurse, was less that $3000.

I am not familiary with Sweden, Norway or Denmark, but many in the UK, France and Germany carry private insurance. Truly. No one is forced to submit to ONLY government health care systems.

Many Americans die while awaiting surgery as well. Mr. Klein doesn't address that issue. Further, what about insurance companies DENYING treatments, tests and surgeries not listed in their service manuals?

[cliffstep]

08:08 PM on 05/02/2009

Oh, please, filibuster. Please. Nothing will drive you down to 15% faster.

[DoTheMath]

07:49 PM on 05/02/2009

I hope the threat of a filibuster doesn't have the teeniest tiniest effect on President Obama's choice. He should nominate the very best possible candidate and let the chips fall where they may. If Republicans want to go down "slugging," let them.

[babyboomerorig]

08:55 PM on 05/02/2009

I doubt that it will have any effect on President Obama's nomination. He can talk to the Republicans till he's blue in the face and, unless he nominates God, they'll object.

On second thought, they probably wouldn't recognize that he nominated God, so it's a moot point.

[timm0]

09:02 AM on 05/03/2009

The threat of a filibuster will definitely have a huge effect on his choice - no doubt about it.

I expect he will have learned from some of the other appointments where people weren't vetted terribly well - so he will cover a few more bases on that front.

In the end, his choice will be someone with a more watered-down set of progressive bona fides, but not TOO watered down. But it will most assuredly be someone who will not be objectionable. That will be the key to driving down the repug party even further. Here's how:

- repuglicans will block the nominee because they've decided their path to success is saving the US from socialism, fascism, communism, tyranny, etc. They will NEVER agree with ANYTHING proposed by Obama.
- repugs will need to build their salvation case on petty events and wildly exaggerate.
- the ensuing childish spectacle presented by the repugs will prompt an adult response from Obama and chip away another 3 or 4% approval for the repugs.

This is Obama's approach these days.

Then again, we still have geinther..... so let's just hope for continuous improvement!

[Pleneras]

07:42 PM on 05/02/2009

The repugs cannot expect the people to think we can only nominate CONSERVATIVES. What world do they think we live in? There is nothing in the books that says we have to be that stupid.

[Patricia84]

06:43 PM on 05/02/2009

There might be some way for the Republicans to be useful 18th century-style. Dr Ron Paul suggested filibusters could prove useful against the pirates.

[SpaceCadet]

06:38 PM on 05/02/2009

Considering Vitter's incomprehensibly stupid blockage of Obama's _apolitical_ FEMA nominee -- a competent emergency manager from Florida, a state with a Republican governorm -- I find it difficult to see why the Repubs would refrain from blocking the much more politically fraught Supreme Court appointment.