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

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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.

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