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President Joe Biden will have the opportunity to appoint a Supreme Court justice, following the announcement that Stephen Breyer will retire.
Given the extremely high stakes involved in a lifetime appointment to the nation’s highest court, one can expect pressure on Senate Republicans to do all they can to prevent the appointment of a liberal judge. Here’s how the nomination and confirmation process will unfold:
What does the Constitution say about Supreme Court nominations?
Article II of the Constitution states that the president “shall nominate and by and with the Advice and Consent of the Senate, shall appoint…Judges of the Supreme Court.”
The Constitution clearly gives the president the authority to nominate anybody to the Supreme Court and requires the Senate to approve it, but is otherwise mum on the subject. Much of the rest of the process is dictated by convention (like the precedent that the Supreme Court will only include nine members), or by rules created by the Senate.
How will the Senate consider Biden’s nominee?
The nomination will first be taken up by the Senate Judiciary Committee, which comprises 11 Democrats and 11 Republicans. The Senate panel will hold hearings on the nomination. If all 11 Republicans decide to vote against Biden’s nominee, the process will be stuck there — but only temporarily.
Under the current power sharing agreement governing a Senate split evenly between Democrats and Republicans, if a measure or matter is not reported to the full Senate because of a tie vote at the committee level, Democratic Senate Majority Leader Chuck Schumer of New York can move to discharge the committee from considering the matter further.
This motion to discharge can be debated for a maximum of four hours, with time evenly split between Democrats and Republicans. After that time expires, Democrats can move the nomination to the full Senate if all 50 vote in favor.
The full Senate can then vote to confirm Biden’s nominee with a simple majority vote, with Vice President Kamala Harris casting the tie-breaking vote in favor if need be.
Votes on Supreme Court nominees do not need to receive 60 votes to break a filibuster like most other matters before the Senate, after then Republican Senate Majority Leader Mitch McConnell of Kentucky moved to change Senate rules in 2017 in order to confirm President Trump’s appointment of Justice Neil Gorsuch.
Can Republicans do anything to derail Biden’s nominee?
Republican Sen. Lindsey Graham of South Carolina, a member of the Judiciary Committee, said in no uncertain terms on Twitter that Republicans are helpless to stop a Biden nominee in the face of a unified Democratic caucus.
That doesn’t mean Republicans can’t make the process difficult for Democrats, especially if they are able to dig up dirt on Biden’s nominee that could make voting for her difficult for centrist Democrats.
Following Democrats’ hostile reaction to former President Donald Trump’s nominee, current Justice Brett Kavanaugh, many conservative pundits are calling for a similar effort to throw sand in the gears of the nomination process.
One tactic Republicans may take is to exercise their right to call witnesses to participate in the Judiciary Committee hearings, and they can request a one-week delay on the vote after a committee meeting is scheduled to consider the nomination.
Republicans on the Judiciary Committee could also boycott the committee vote, leaving it without a quorum. Senate rules dictate that a majority of the committee must be present to achieve a quorum, and they also say there must be two members of the minority party present in order to vote a nominee to the Senate floor.
But this tactic failed in 2020, when Democrats boycotted the committee vote, which should have denied the committee quorum because it lacked two members of the minority. Nevertheless, the Judiciary Committee held its vote and Trump nominee Amy Coney Barrett was subsequently confirmed by the full Senate despite an objection by Schumer that the vote violated Senate rules.
When push comes to shove, Democrats could also use a simple majority vote to change the rules of the Senate to obviate the quorum requirement altogether.
