Home / General / Murc’s Law, Brett Kavanaugh Edition

Murc’s Law, Brett Kavanaugh Edition

Senate Majority Leader Mitch McConnell, a Republican from Kentucky, from left, Brett Kavanaugh, U.S. Supreme Court associate justice nominee for U.S. President Donald Trump, and U.S. Vice President Mike Pence, stand during a meeting at the U.S. Capitol in Washington, D.C., U.S., on Tuesday, July 10, 2018. Senate Republicans are pledging a swift confirmation process that would put Kavanaugh on the bench before the new term opens Oct. 1, and there is little Democrats can do to stop them. Photographer: Chip Somodevilla/Pool via Bloomberg

I’ve seen a fair amount of chatter in the Twitter dot com website arguing that with McCain passing away Senate Dems can stop Kavanaugh by denying a quorum. Leaving aside that his replacement will be in place in plenty of time, this is not true anyway:

If the Senate Democrats refused to participate in quorum calls or roll-call votes, here are five ways the Republicans could respond:

1) Instruct the sergeant-at-arms to request (first round) or compel (second round) absent senators to the chamber. This was done in 1988 to break a Republican filibuster when GOP senators were avoiding the Senate floor. (Here are more details on attendance).

2) Currently, the presiding officer of the Senate cannot count members who are present but not voting toward a quorum. (See page 14 here; and pages 1,051 to 1,052 and 1057 here.) But nonvoting senators can be asked to explain why they refuse to vote, and the Senate can then vote on whether to excuse the nonvoting senator. (See rule 12, section two here.)

After consulting with the Senate Historian’s office, I cannot find any rule or precedent regarding fining senators for not voting, or for absence. This has been done, though, in the House of Representatives, and was done in Texas in 2003 to end quorum-breaking.

3) However, McConnell and the GOP would likely make some incremental changes in how senators are counted so they can muster a quorum on key votes. There are historical precedents dating back to 1879 for and against allowing the presiding officer of the Senate to count nonvoting members toward a quorum.

After the extreme measures taken by Senate Republicans to deny a vote on the nomination of Merrick Garland to the Supreme Court in 2016 and then forcing the Neil Gorsuch nomination through the Senate in 2017, it is extremely likely that the Senate Republicans would do whatever is necessary to ensure a quorum if it meant gaining another Supreme Court seat.

4) The Senate’s cloture rule cuts both ways. On one hand, once cloture is invoked it provides protection against dilatory (a.k.a. delaying) motions, such as motions to adjourn. On the other hand, there is a mandatory quorum call before any cloture vote, which the minority party can avoid.

Cloture on most legislative matters, including many items on the summer agenda, requires three-fifths of the Senate. (By precedents set in 2013 and 2017, the cloture threshold for nominations is a simple majority.) Finally, votes on parliamentary disputes are still allowed after cloture is invoked and cannot be decided without a quorum voting.


For these reasons, I would expect that prolonged quorum-breaking would be politically costly, and that it matters what the Democrats are asking for. A short-term stoppage to obtain basic parliamentary fairness, or in defense of the rule of law, could be defensible. Shutting the Senate down indefinitely over a Supreme Court seat would almost certainly be a losing battle.

The idea that McConnell would allow a Democratic minority to stop a Supreme Court nomination rather than make unilateral procedural changes to allow the nominee to be confirmed is, how shall I put this, insane if you know anything about McConnell.

Some people desperately reaching for ways that Dems can unilaterally stop the nomination are well-intentioned; Kavanaugh getting a lifetime appointment is indeed horrible, and I can at least understand the straw-grasping. Sometimes it’s done in obvious bad faith, people on the nominal left who spend every election season telling people not to vote for Democrats denying the horrible consequences of Republicans winning elections. But the reality is that there is no way of stopping the Kavanaugh nomination without at least one Republican going along. When Republicans win elections many bad things will happen that wouldn’t have otherwise, and this is one of those things.

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