While they may try, there isn’t much Republicans can do to block it.
Senate Democrats are trying to confirm Supreme Court nominee Ketanji Brown Jackson as quickly as they can now that her nomination hearings are over. While they were contentious at points, they brought no real surprises that altered her chances of getting on the court.
Democrats want to close the deal swiftly, with a Senate vote to confirm Jackson’s nomination by April 8. If confirmed, Jackson would become the first Black woman to take a seat on the nation’s highest court.
Because they are in the majority, Democrats have a pretty clear path to getting this done, though there’s likely to be some residual drama from Republicans, as there frequently has been in recent Supreme Court fights.
Here’s what comes next.
Jackson’s nomination heads next to a vote in the Senate Judiciary Committee that’s slated to take place on Monday, April 4. Although Democrats hoped to consider Jackson’s nomination as soon as Monday, March 28, objections from any one committee member can lead to a nomination being held over for a week, and it’s a safe bet there will be Republican objections.
The committee vote is widely expected to end in a tie, since the 11 Democrats in the committee are set to support Jackson, while none of the 11 Republicans are expected to. Although a tie would cause a slight delay, it won’t deter her nomination from advancing.
“A tie vote doesn’t stop us,” Sen. Dick Durbin (D-IL) said Wednesday. “It slows us down on the floor for a few hours, but it doesn’t stop us.”
The committee’s response to a potential tie could also indicate how much lawmakers want to preserve Senate norms. Historically, the Judiciary Committee has allowed Supreme Court nominees, including Robert Bork and Clarence Thomas, to go to the floor even if they don’t get the backing of the majority of the committee.
…. Judiciary then held second votes that sent Bork & Thomas to full Senate (w/ negative & neutral recommendations).
— Paul Kane (@pkcapitol) March 24, 2022
Will today’s Rs agree? If not there’s a procedure Schumer can use to bring her to Senate floor. NBD.
But traditional SCOTUS courtesy doesn’t require it. 2/2
If Republicans refuse to do the same with Jackson, Democrats have the ability to vote to release her nomination. Going that route, though, would indicate that the days of honoring this past practice are likely over.
Democrats hope to hold a floor vote on Jackson shortly after the committee meeting, with the goal of getting her confirmed before the Senate leaves for its Easter recess, which members could depart for beginning Thursday, April 7.
Because Supreme Court nominees only need a simple majority (or 51 votes) to get confirmed, Democrats’ 50-member caucus will be able to advance Jackson on their own, with a tiebreaking vote from Vice President Kamala Harris.
Between now and then, however, Democrats are courting Republican Senators in an attempt to make the vote on Jackson’s nomination a bipartisan one.
There are limited tools Republicans have in order to block the nomination from moving forward.
One idea that several Republicans have already rejected is a boycott of the Judiciary Committee vote. Per committee rules, two members of the minority party need to be present to establish the quorum needed for a vote to take place. If no minority members are present, the vote theoretically can’t move forward. Additionally, a majority of the committee needs to be present to report a nomination to the Senate floor.
Were Republicans to boycott, the committee would not have the majority it needs to send the nomination to the floor.
In the end, however, Democrats have a way to overcome such maneuvers. In the case of a boycott, Democrats could still advance Jackson’s nomination, though it would likely be contested on the Senate floor as a rules violation. At that point, the Senate could hold a majority vote effectively overriding these rules.
There’s also precedent to ignore the quorum rule. In 2020, then-Senate Judiciary Chair Lindsey Graham advanced Supreme Court Justice Amy Coney Barrett’s nomination even though Democrats boycotted the committee vote. At the time, however, Republicans had the necessary majority in the Committee to get the nomination to the floor.
Thus far, multiple Republicans have indicated they’re unlikely to pursue a boycott.
“I haven’t had any conversation [on a boycott] with any Republican,” Senate Judiciary ranking member Chuck Grassley (R-IA) told Punchbowl Wednesday. “If there’s any thought of that, people would be talking to me. So there’s no thought of that.”
Republicans have also made demands for more documents to vet Jackson’s nomination, including the pre-sentencing reports in child porn cases that Jackson oversaw. Throughout the hearings, Republicans have argued that Jackson was too lenient in child porn cases, an argument that’s been widely debunked.
On Wednesday, Republicans on the committee pushed for Democrats to release the confidential pre-sentence reports in these cases. These include sensitive information about the victims as well as notes from an offender’s probationary officer. Democrats have already rejected this request, and said that they’ve provided Republicans with sufficient information about these cases.
“The notion of making those pre-sentencing reports available for this political environment, and potentially available for public consumption, would be reprehensible and dangerous,” Durbin said during Wednesday’s press conference.
George Washington University professor Sarah Binder, an expert on congressional procedure, notes that there are few avenues for Republicans to actually slow or block the nomination, including the push for documents.
“In a 50-50 senate, the majority can stick together and manage the process to the majority’s interests,” she told Vox.
Democrats are hoping they can sway some Republicans to support her nomination, even though they don’t need to.
Previously, three Republicans — Sens. Susan Collins (R-ME), Lisa Murkowski (R-AK), and Lindsey Graham (R-SC) — voted to support Jackson’s nomination to the DC Circuit Court. They’re the most likely Republicans to consider voting for her again.
Graham, however, has already signaled that he probably won’t. He is the most conservative of the three and has in the past made a point to respect presidential selections for judicial nominations. But he seems to be ready to break with that posture in this case, particularly after Biden selected Jackson over a South Carolina judge he advocated for.
“[Biden] made his decision that, ‘I’m not going down the consensus road. I’m going to go down the base road,’” Graham said in an interview with CNN. “I’ll make my decision based on his decision.”
Other Republicans that Democrats are trying to win over include more moderate members like Sen. Mitt Romney (R-UT) and retiring members such as Sens. Rob Portman (R-OH), Richard Burr (R-NC), and Pat Toomey (R-PA).
Romney said that he believed the attacks on Jackson’s record on child porn cases were “off course,” though it doesn’t necessarily mean he’d support her confirmation.
Given the limited Republican support Jackson received last year, it’s unlikely she’ll get more than a handful of GOP votes this time around.
