The Senate Judiciary Committee in the 117th Congress

Who will hold the gavel on January 20?

|

The 117th Congress will assemble on January 3, 2021. As the vote stands now, the Democrats will have at least 48 seats in the Senate. They successfully flipped Republican-held seats in Colorado and Arizona. And the Republicans will have at least 48 seats in the Senate. The Alaska and North Carolina races have not been called yet, but the Republicans will probably hold both seats. Therefore, I will presume that the Republicans will have at least 50 seats on the Senate.

The two Georgia seats are headed for runoff elections on January 5. One of them, Senator Perdue, will lose his position on January 3 when the new Congress meets. At that point, I believe the Governor can fill the Senate vacancy by appointment. (If I'm wrong about this point, please email me). Presumably, the Georgia Governor, a Republican, will select Perdue immediately upon their positions becoming vacant. The other Senator, Loeffler is already serving an unexpired term, and her appointment would continue until her successor is qualified. As a result both Perdue and Loeffler would then hold those seats until the results of the January 5 election are certified. It might only be for a few days.

If both Perdue and Loeffler prevail, the Republicans would then have a 52-48 majority. If one prevails, the Republicans would have a 51-49 majority. If both lose, the Senate would be split 50-50. When the Senate is split, the majority is determined by the vote of the Vice President, as President of the Senate. The Senate has only been evenly divided three times: 1881, 1953, and 2000. The most recent tie didn't last long. In May 2001, Senator Jim Jeffords switched from the Republican party to the Democratic party, giving the Democrats control over the Senate.

Vice President Pence remains the President of the Senate until January 20. Therefore, with a 50-50 majority, the Republicans would still keep control of the chamber. With a 50-50 tie, during the period from January 3 through January 20, Senator McConnell will remain the majority leader. (Here, I will presume that the current votes hold, and Biden is elected). But on January 20, Vice President Harris would break the tie the other way for the Democrats. Senator Schumer would become the majority leader. And Senator Feinstein, or more likely someone else, would take the gavel for the Senate Judiciary Committee. The Committee could schedule votes on all of Biden's nominees, and they would pass through on a party line vote. At that point, a floor vote would be held, and the nominee would be confirmed on a near-party line vote.

If the Republicans hold the Senate with a 51-49 or 52-48 vote, the Republicans would maintain control of the Senate Judiciary Committee. At that point, the Chairman of the Senate Judiciary Committee becomes, very, very powerful. He would have the power to decide which nominees receive a hearing and a vote. The chairman could effectively hold up nominations to the executive branch, as well as to the judiciary. Moreover, even if a hearing and vote is held, the Republicans could simply vote down Biden's nominees. Imagine that the committee votes down Biden's nominee for the Supreme Court. It is unclear that Leader McConnell would give a nominee a floor vote if he is voted down in committee. The more likely response is "nominate someone else." I can even see a scenario where cabinet nominee are voted down. We may be stuck with Acting Attorney General Jeff Rosen for some time. (Remember Sally Yates?)

These thoughts are somewhat tentative. Please email me if I got anything wrong.

Update #1: I initially wrote that Senator Graham would remain the chair of the SJC, but I was mistaken. Senator Grassley is slated to resume chairmanship of the SJC.

Update #2: Senator Perdue's seat would become vacant, but Senator Loeffler's will not.

NEXT: Prof. Michael McConnell (Stanford) on Fulton v. City of Philadelphia

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  1. "Moreover, even if a hearing and vote is held, the Republicans could simply vote down Biden's nominees. Imagine that the committee votes down Biden's nominee for the Supreme Court. ... I can even see a scenario where cabinet nominee are voted down."

    To be clear, if the Senate goes to this extreme (not allowing any Biden judges for four year, or approval of any of Biden's cabinet) that would be the end of our system of government. Which is maybe not a bad thing.

    That said, I have faith that there remain enough GOP Senators that are not fanatics, QAnon believers, nihilists, or Trumpists, that this will not come to pass. Delaying and obstruction and some forced compromises? Sure. But not this.

    And who knows. Maybe the fever dream will pass and we can have adults running things again. You can always wish, right?

    1. At this point my assumption is the Dems will have Biden only appoint the farthest-left, most extreme people they can find, knowing the Republicans won't confirm any of them. Then they paint the GOP Senate as obstructionist and flip it in 2022

      1. He is picking boring establishment types. Treasury from Wall Street, Defense is going to be Michèle Flournoy.

      2. Or people see that the democrats are socialists, and the House, not the Senate flips, while the Senate majority increases.

        (assumption: The dems allow elections to continue)

        1. Doubt it, without being able to pass legislation that actually effects people it's all talk and the Dems have always been better at the propaganda game. Most moderates already view the GOP in general, and McConnell in particular, as obstructionist

          1. It's kind of a lose-lose scenario: If the Democrats don't capture the Senate, they can't pass legislation which reminds the public why they keep handing Congress to the Republicans. But if they DO capture the Senate, you get Court packing and election rigging legislation which ensures that the public remembering why they kept handing Congress to the Republicans doesn't matter.

            I guess I prefer the former loss, because at least it's not close to irreversible.

            1. Without the Dems passing harmful legislation I don't think the public *will* be reminded why they handed Congress to the Republicans, so they will hand it back to the Dems because "we HAVE to do SOMETHING"

              1. I guess it's up to Republicans to publicize what the Democrats *attempt* to do.

                Which, at a minimum, requires doing something about the media environment. If we had anything even vaguely approaching a balanced media in this country, Trump would have cruised to a 2nd term. Getting reelected despite having virtually the entire media against him was, apparently, just too much to ask.

                2 years from now, the media aren't going to be less biased, that's for sure.

                1. Convening another meeting of Libertarians For Government-Controlled Journalism?

                  Expecting responsible publications to become pushers -- or even appeasers -- of clingers' fever dreams (stolen elections, young Earth, birtherism, creationism, Hunter Biden, Pizzagate, ) is roughly equivalent to waiting for the Rapture to solve environmental issues or for Jerry Falwell to stop paying guys to nail Becki while he watches.

                  You can't win, clingers.

                  1. Fuck off, you piece of shit.

                  2. Typical left winger: Somebody complains about the behavior of a company, you assume they mean to regulate it to death, rather than creating an alternative.

                    No, let the left have the legacy media, we need new outlets that are designed to be censorship resistant.

                    1. Maybe find another platform for complaining about mainstream censorship -- other than a right-wing blog that engages in repeated, partisan, hypocritical, viewpoint-driven censorship?

                      Why are clingers to impervious to self-awareness?

          2. Most moderates already view the GOP in general, and McConnell in particular, as obstructionist

            Which is of course why so many moderates vote for them.

        2. The level of stupid required to believe that the Democrats are socialists is incredible. Yeah, some people actually are that dumb, but not that many.

          1. Dems almost never make any attempt to appear distinct from socialists.

            1. They don’t attempt to appear distinct from German shepherds either, and for the same reason: anyone who can’t tell the difference between a Democrat and a socialist, or a Democrat and a German shepherd, at bare minimum needs new glasses. In both cases the differences are fairly obvious.

    2. "if the Senate goes to this extreme" is a typical ignorant statement, ignoring the President's role in this. If he nominates extreme candidates, is it extreme to reject them?

      "Extreme" is in the eye of the beholder. We can see which way your eye sees things: Biden can do no wrong, and if his nominees are not approved, it is extreme Republicans at fault.

      1. Obviously. Any education candidate who doesn't restore the regime of punishing male students for any sexual assault accusation on college campuses is "extreme."

      2. "“Extreme” is in the eye of the beholder. We can see which way your eye sees things: Biden can do no wrong, and if his nominees are not approved, it is extreme Republicans at fault."

        Biden, long-term Senator from noted hotbed of radicalism, Delaware.

        Look, I get that to some people, anyone to the left of Ayn Rand is a dirty commie, but Biden is hardly a radical revolutionary.

        1. Biden has already endorsed the Green New Deal, $15 minimum wage, paid maternity leave, free college, forgiving student loans, and all sorts of other spendy things.

          If that's not extreme to you, nothing is. If his past history of locking people up is not a bad sign to you, nothing is. And then there's his hair-sniffing, his public snuggling with uncomfortable women, and his corrupt son business.

          If all that is just moderate, then there is no room for debate.

          1. At this point, with the Republicans' acceptance of the bizarre and evil MMT, I don't even think we can say that Biden's spending plans are any more extreme.

          2. None of those things are extreme in the slightest. All of them, except possibly the Green New Deal (which of course Biden opposes), have majority or even supermajority support. $15 minimum wage just got over 60% support in Florida.

            1. Which of course Biden verbally opposed on the campaign trail, while having it as part of his platform on his campaign website.

              1. Highly doubt that. I’m sure he has some half-measure climate plan on his website, but it ain’t the GND.

    3. If Biden successfully steals the election, then it becomes simply a "Fuck You!" moment.

      I could see the R's approving any of Biden's appointments to the SC IF he is replacing a lib with a lib. Other than that he tells Biden to "Pound Sand".

      1. I can see Democrats winning two of three Senate elections -- Georgia, Georgia, Alaska -- and politically bombing the Republican bigots back to the Stone Age.

        Far more chance of that than Donald Trump being determined to be the lawful winner of the 2020 election in the realty-based, non-goober world.

        Carry on, Darth . . . but only so far as your betters permit.

        1. You also claimed to be able to see President Obama serving on the Supreme Court in early 2021, which should give the reader a good sense of your prognosticatory abilities.

          (You can buy Sullivan losing for 7 cents on PredictIt right now, in the unlikely event that you're serious.)

          1. Without Sullivan, it will take just two votes in Georgia to put the Democrats in control of the House.

            Feeling lucky, clingers?

            1. Asking Democratic voters to turn out to a special election LOL, good luck with that.

              1. As tough as expecting a right-wing law professor to avoid frequent use of a vile racial slur?

            2. You can buy Perdue losing for 28 cents and Loeffler losing for 35.

      2. Nobody is stealing the election, and you are an idiot for proposing otherwise.

        1. Everyone who questions the perfect honesty and integrity of Dems is always name-called.

          Good thing no one pays any attention to that tactic any more.

          1. Present some evidence or expect to be scorned, mocked, then disregarded by your betters.

          2. You are the only one attempting to characterize anyone as perfect.

            You're attempting to claim the election is being stolen. You have absolutely no evidence of this.

            You are a fool, proclaiming foolish ideas. Get some evidence or accept your status as a fool and a liar.

            1. There's more than enough evidence.

              1. That's what you keep saying - without evidence.

                Begone fool. Maybe you can visit your idol once he's in prison.

            2. Dramatically more proof than Russian collusion ever had.

    4. loki : Maybe the fever dream will pass and we can have adults running things again. You can always wish, right?

      Indeed. But before you get too overexcited, it might be worth reflecting on the Democrat minority's approach to both judicial and executive branch nominations, during the Trump administration.

      For example :

      https://www.cnsnews.com/news/article/melanie-arter/wh-79-cloture-votes-used-against-trump-nominees-compared-17-past-4

      Obviously if a Republican majority were to oppose Biden nominees as vigorously as the Democratic minority has opposed Trump's, very few would make much progress - and there would have been no escalation, merely a precisely equal tit for the Schumer tat. The difference in effect would lie simply in the fact that a Senate majority has the votes to do much more obstructing than a minority.

      However, it would be in the interests of the Republic, the Biden administration, and probably the GOP's electoral prospects in 2022, to cool it. And I expect McConnell thinks so too. So there may well be obstruction, ie actual rejection, of hard line lefty judges and executive nominees, but acceptance of moderates. Or perhaps a deal where Biden gets a judge, then McConnell gets a judge, in turn.

      McConnell will have to tread a fine line - he can't annoy Trumpists too much by being too cuddly, that would screw 2022 just as much as following Schumer's example of extreme bolshiness.

      If I were McConnell (and thank the Lord I'm not) I'd be inclined to suggest to Joe (or whoever winds him up each morning) that retaining AG Barr would have a very positive effect on White House - Senate relations. Not going to happen, obviously, so I foresee a little early friction if the GOP clings on to its majority. Which is, of course, far from certain. The betting markets have it at 75% or so, which seems a little high to me. I assume both Georgia seats will go the same way and if they do, there's a good chance it'll be for the Dems.

    5. To be clear, if the Senate goes to this extreme (not allowing any Biden judges for four year, or approval of any of Biden’s cabinet

      Well, as to the latter, I assume Biden would then follow the Trump precedent of never bothering to nominate anyone and just running the country with "acting" officials for four years.

      But, yeah, I think that while Biden will be constrained in who he appoints,¹ even a GOP-led senate will not pull a Merrick Garland for four years.

      ¹Note that even if the Dems have a 50-50 with Harris breaking ties, Biden is still not going to be appointing Che Guevara to the bench even if he wanted to, because Joe Manchin is one of those 50.

      1. even a GOP-led senate will not pull a Merrick Garland for four years

        A GOP Senate kept a few judicial nominees hanging for large chunks of Clinton's second term, and the Democrats kept the game running by blocking Bush 43 nominees for four years, even though they weren't even in the majority for half that time. Henry Saad was nominated inn Nov 2001 and withdrew in March 2006, so it's not as if even 4 years were the limit. Nor is it 4 years and then they let you through.

        If the GOP retain the Senate, a more workable compromise is what Bush 43 did a couple of times, giving the Dems a few of their own judges in return for confirmations of Bush judges.

        1. A GOP Senate kept a few judicial nominees hanging for large chunks of Clinton’s second term, and the Democrats kept the game running by blocking Bush 43 nominees for four years, even though they weren’t even in the majority for half that time. Henry Saad was nominated inn Nov 2001 and withdrew in March 2006, so it’s not as if even 4 years were the limit. Nor is it 4 years and then they let you through.

          There is a difference between blocking a specific nominee and blocking all nominees. The Garland scenario I referred to was the latter. They weren't objecting to Garland because of his views or character or anything like that; they had no objection at all to him, other than the party of the person who nominated him.

      2. I assume Biden would then follow the Trump precedent of never bothering to nominate anyone and just running the country with “acting” officials for four years.

        Yeah, executive branch appointments are much more important for GOP administrations than for Dem administrations. Because the career Swamp is 108% Democrat anyway, Biden doesnt really need his own nominees in the saddle. Whereas for Trump, even when he got his own nominees (eventually) it was usually insufficient to get control of the career bureaucracy, which was only notionally answerable to the political appointees.

  2. The chairman could effectively hold up nominations to the executive branch, as well as to the judiciary.

    Graham would only control nominations that go through the judiciary committee. Those wouldn't include most executive branch nominations, just those in the Department of Justice.

    1. And by Graham, like Josh, I mean Grassley.

  3. Several thoughts come to mind.

    1) Isn't it illegal for Georgia to have a runoff procedure that prevents the winner from taking office in a timely manner?

    2) If no to #1, then why can't we delay seating a new President (or at least make it similarly non-final) long enough to conduct a full forensic audit of the election in the disputed states?

    3) A junior Democratic House member is challenging Pelosi for the speakership. How is that appointment made formally in House rules? Could the challenger be voted into the speaker's chair by the Republicans plus a small number of Democrat defectors, as happened a few years ago in the CA state Assembly?

    1. On 2: Because the date when the President's term expires is written into the Constitution.

    2. Gosh, of course we can delay seating the new President past January 20. We Trump supporters don't care about little things like the 20th amendment to the Constitution. Caring about the rule of law? that's for suckers and losers.

    3. on 1) there is no winner; that's why they have a runoff. This applies to the two Senate seats, not the president. GA requires the senate "winner" to have over 50% of the vote total.

      1. If the whole country did this for presidential elections, Trump would have been reelected, assuming that 90% of the Libertarian votes went to Trump.

        1. That may be a big assumption. It might be true that 90% of Libertarians would prefer Trump (at least of the ones that voted L in this election) but I don't think that many prefer him enough to actually vote for him, even in a runoff

          1. Yeah, but just having a runoff would have resulted in a handful of state elections under absurdly tight scrutiny. That would have favored Trump even if very few Libertarians voted for him.

        2. Well, no. First, the assumption is bad; very few libertarians support Trump. But second, Biden is currently over 50%.

          1. Oh, I guess on a state by state basis maybe Biden isn't over 50%; I haven't checked. But the assumption is still bad. Trump is the least libertarian president we've had since at least Woodrow Wilson.

    4. On #1, the constitution says that "[t]he times, places and manner of holding elections for Senators and Representatives, shall be prescribed in each state by the legislature thereof; but the Congress may at any time by law make or alter such regulations, except as to the places of choosing Senators." So if a state wants to have a runoff, and Congress doesn't forbid it, it can have a runoff.

    5. "1) Isn’t it illegal for Georgia to have a runoff procedure that prevents the winner from taking office in a timely manner?"

      Great idea. Put Giuliani on it.

      (When it was announced that Pam Bondi and Rudy Giuliani had just been spotted on the ground in Pennsylvania, addressing the crowd outside a tabulation center with bullhorns, one member of the Democratic legal team responded, 'the Republicans have conceded Pennsylvania.')

      "2) If no to #1, then why can’t we delay seating a new President (or at least make it similarly non-final) long enough to conduct a full forensic audit of the election in the disputed states?"

      Another great idea. I doubt Giuliani would feel comfortable advancing that argument, though, if he still possesses (and want to retain) a law license.

      Have you ever skimmed the Constitution of the United States of America?

    6. Since no one has addressed 3, the Speaker is elected by majority vote in the House, so yes, with a tight majority a few defectors can absolutely form a coalition with the Republicans to elect a different Speaker

  4. Wow, the pure glee that eminates from this post is unmistakable. The post is a call to arms for the Republicans, that they should do everything they can to obstruct the new administration from being able to govern. This is nihilism at its finest.

    At some point in time one would think that even the most partisan of a class of people, like law professors, would put the interests of the nation over their pure partisan hatred and desire to destroy what they cannot control. This post goes to the position that if one thinks that, one would be wrong.

    Again this is a betrayal of conservatism. It is analgous in its destructive intent to those on the left who would by violence in the streets destroy peaceful protests and the rule of law. How ironic.

    1. Like I said above, it takes two to tango. Extreme nominations deserve extreme rejection. If you think only Republicans can be extreme, go back to square one.

      1. And why do you expect extreme nominations, or do you think any nomination by Biden will be "extreme?"

    2. So if Republicans in 2020 act like Democrats in 2016, they are nihilists, where the "resistance" are fine, upstanding patriots?

      1. Yeah, that's right. In 2016 the Dems pushed through the nomination of a Supreme Court Justice in an election year rather than waiting until the election determined the next President. Oh, wait a minute, sorry . . . . .

        1. The Democrats weren't in power in 2016.

    3. The "interest of the nation" is peaceful separation. If you leftists won't allow that, the "interest of the nation" is gas chambers.

      1. "If you leftists won’t allow that, the “interest of the nation” is gas chambers."

        Prof. Volokh's self-described "civility standards" continue to be vividly revealed.

        At least this guy didn't use 'c@p succ@r' or 'sl@ck-jawed,' or he would face banishment.

        Faux libertarian free-speech phonies are among my favorite culture war casualties.

      2. Threatening people with gas chambers on the internet takes zero courage. It must chafe you immensely that in real life, you're a cowardly piece of trash.

        America doesn't take kindly to people who think gas chambers are acceptable. Run your mouth off a bit more and perhaps the FBI can have a chat with you.

        1. That guy threatens to put people in gas chambers.

          Prof. Volokh allows it.

          After banning "sl@ck-j@w" and "c@p succ@r' (when written by a non-conservative) because 'civility standards.'

          Carry on, clingers.

    4. Why should Republicans be more cooperative with Biden than Democrats were with Trump?

      The concern (-trolling ?) about "betrayal of conservatism" is adorable.

      Time for a real meet-in-the-middle deal. Judges for wall? Judges for other reforms? Judges for votes in the House on Senate-passed bills? Judges for DoJ action on vote fraud? There's no reason to give up something for nothing in return.

      Why should anyone care about being name-called a nihilist? Dems name-call all day long. It's a sign of poor mental health.

      1. " Judges for wall? "

        I would expect better insight from a third-grader. The bigots will be very fortunate if the scant new sections of wall aren't dismantled as a show of national decency.

    5. "The post is a call to arms for the Republicans, that they should do everything they can to obstruct the new administration from being able to govern."

      Welcome to Resistance 2.0. Hope you have fun.

    6. I am reading a novel right now about a middle-aged academic historian, specializing in the history of Nazi Germany. His career never amounted to much; he works at a mediocre university in the midwest teaching apathetic students; he hates his colleagues; he's grown estranged from his indifferent, ugly, and fat wife; he ruminates pathetically over the size of his penis and a brief affair he had many years ago; he can't even complete the most important work of his career, which sits on his desk without an introduction.

      Josh's posts remind me of this man.

    7. "Wow, the pure glee that eminates from this post is unmistakable. The post is a call to arms for the Republicans, that they should do everything they can to obstruct the new administration from being able to govern. This is nihilism at its finest."

      Welcome to the last 4 years.

      "At some point in time one would think that even the most partisan of a class of people, like law professors, would put the interests of the nation over their pure partisan hatred and desire to destroy what they cannot control."

      You been asleep for the last 4 years?

      "Again this is a betrayal of conservatism. It is analgous in its destructive intent to those on the left who would by violence in the streets destroy peaceful protests and the rule of law. How ironic."

      Again, welcome to the last 4 years.

      Now for Trump to unleash a counter intelligence investigation of Biden's business dealings thru his son and foreign entities.

  5. But the current two Georgia senators–Perdue and Loeffler–will lose their positions on January 3 when the new Congress meets.

    I don't think Loeffler would lose her seat until the Georgia election is completed, since she is filling an unexpired term that doesn't end January 3, and the 17th Amendment allows governors to "make temporary appointments until the people fill the vacancies by election as the legislature may direct." The people won't have filled the vacancy until the runoff election is over.

      1. I don't think the governor can appoint a temporary senator for a few days to fill a "vacancy" in Perdue's seat, either. The 17 Amendment says t "[w]hen vacancies happen in the representation of any state in the Senate, the executive authority of such state shall issue writs of election to fill such vacancies: Provided, that the legislature of any state may empower the executive thereof to make temporary appointments until the people fill the vacancies by election as the legislature may direct." Clearly, the governor can't "issue writs of election" to fill the seat, since that would nullify the current, ongoing election. And if that's the case, then this isn't the kind of "vacancy" the 17th Amendment is talking about.

      2. I think Josh owes us a correction on that point.

  6. Mitch isn't stupid. He is not going to not give Biden a cabinet and eventually a sub-cabinet. Slow going, sure, but so long as Biden doesn't nominate Susan Rice and other un-acceptable people, almost everyone will eventually get confirmed. Maybe a token rejection to show who is boss.

    District court nominees will mostly get approved so long as they get blue slips from GOP senators. Circuit courts are different, hardly any will get approved except for maybe an occasional pick to replace a retiring Dem in a GOP controlled circuit. Of course there will be no vacancies anyway come January so its late 2021 until it becomes an issue.

    If Breyer quits or dies, his replacement will eventually get confirmed too so long as he or she is like Breyer. Boring and liberal [but not Sotomajor liberal] and not too young. No 45-55 year olds or younger. How old is Garland?

    1. Hopefully, Mitch stands firm on not confirming a racist like Holder to the DOJ. Most of the problems from Obama's admin stemmed from him.

      1. AG will either be his friend Coons from Delaware or a DC Big Law partner with prior Justice experience

        1. I'm fine with either of those. Then again, Bush Jr.'s DOJ brought plenty of liberal cases regarding voting and housing, so who knows?

        2. I was thinking Amy Klobuchar for AG as her backing did help in the Primary.

        3. Doug Jones of Alabama, who just lost his Senate seat, seems like a natural attorney general. Otherwise he is out of politics.

          Biden should be extremely cautious about nominating anyone entitled to sit in the 117th Congress.

    2. Garland is 67. There will be a lot of pressure on Biden to nominate an RBG type for the court though. And as I noted above, I don't think the Dems will be above deliberately pushing unacceptable nominees to force the Republicans to take an obstructionist position, figuring it will cost them in the midterms

    3. Too old. And in any case, he's a white male, so no chance of being Biden's first SCOTUS nominee.

      1. Bretzky, while I am sure Biden would want a female and/or a minority, I do think that he will be limited in what he can do if it is a Republican Senate. Biden is not appointing Janice Rogers Brown. That is why I posted yesterday that you would probably be looking at someone like Gregg Costa out of the Fifth Circuit. Knowing that Biden would want a female, I could see them trying to push him towards someone like Jane Kelly as she is 8 years older than Judge Costa and is the only Eighth Circuit Judge (regular or senior) that was appointed by a Democrat so it won't change that court at all. Alternatively he could go completely off the board with someone like Judge Diane Gujarati of the Eastern District of New York. She was originally nominated by President Obama for that spot, but that nomination was never acted on. She was renominated by President Trump where she was confirmed 99-0 (then Senator Kamala Harris was absent). The media would then claim that Senate is obstructing a "Trump nominee" elevated by President Biden.

    4. I rarely agree with Bob from Ohio, but I think he has described what Senate Republicans will do. Maybe they will confirm a few more court of appeals judges than he predicts, but basically he's right.

      1. If Georgia puts two Democrats in the Senate, the clingers might regret some of their current bluster.

        That a black woman would cast the vote that puts a bunch of white male bigots from the South in their place of impotence would be very tasty icing on that cupcake.

        See you in January, clingers.

        1. Rev., the chances of 2 Democrats winning in Georgia are probably 1 in 100; literally, the only way that happens is if Perdue faces a scandal. Despite the biggest turnout the Democrats ever delivered in that state, Perdue still won just short of a majority. He's going to win.

          Loeffler could lose, although even there, she's probably a 2 to 1 favorite or so.

          1. This will be an unusual election. Stay tuned.

  7. I'm on record on this blog just a few weeks ago being OK with some pretty serious hardball on the Senate side, despite the fact that Mitch McConnell and I probably wouldn't even agree about which pizza toppings are tastiest.

    In a civilised country, all of this would be sorted out by negotiation between the relevant players. It's not like they have anything else to do for the next two months. Unfortunately, the US inherited Britain's political culture where no one even knows how to spell consensus or compromise, much less achieve it. In both countries, that has been actively harmful for the polity in the last four years, and probably will continue to be for some time.

    1. "US inherited Britain’s political culture "

      Horror. Just the two most dominant countries of the last 400 years.

  8. "In May 2001, Senator Jim Jeffords switched from the Republican party to the Democrat party, giving the Democrats control over the Senate."

    The Democratic Party?

    (Some) academic titles are not what they once were, it appears -- particularly with respect to indicating literacy.

    1. You don't get it. We know full well that the official name is "Democratic Party." We use "Democrat Party" as a pejorative, because it pisses you people off.

      1. That usage is one thing for a disaffected, uneducated clinger; it's quite another from a law professor, even a shambling partisan hack at a downscale school such as South Texas.

        And, yes, I know this guy has a 108-page resume . . .

      2. And perhaps because the impulse to channel Joe McCarthy is irresistible?

    2. Wow. I missed that.

      It looks like Blackman has given up even the fig leaf of academic respectability, in hopes of appealing to the likes of Aktenberg78.

      1. Have you checked Barnett's twitterator lately?

        These guys are imploding.

        1. I do my best to avoid all things twitter.

          It makes me a happier person.

          And that goes triple for facebook.

          1. I have not installed Facebook. So far, I don’t regret that.

  9. Seriously, in a year when Democrats were rioting in the streets and attempting to burn down occupied buildings. In a year when a Republican Senator got attacked by a mob leaving the White house. After the House Republican caucus got shot up, and one of them hospitalized...

    You're not considering the possibility of some maniac deciding to make sure the Democrats take the Senate?

    1. Hopefully the new SCOTUS takes some 2nd Amendment cases and finally puts a nail in the Democrats' gun grabbing dreams.

    2. Dragging out Scalise's bloody shirt again, while ignoring right-wing violence?

      1. You referring to Rittenhouse's self defense shooting? Or referring to the patriot running over an attacker in Charlottesville?

        1. "Or referring to the patriot running over an attacker in Charlottesville?"

          You truly are a piece of shit. Video evidence proves your statement to be a deliberate lie.

          1. Did you even watch the video?

        2. Rittenhouse, Roof, Bowers, too many to list off the top of my head.

          1. For every one of those, there were literally 1,000 black/Hispanic on white murders.

            Why don't you care about those?

  10. I think until we can have a non-partisan commission confirm that this election is legitimate, the Senate should not permit any nominees to the floor, period.

    This is starting to smell really bad and for the sake of democracy we are going to need a full investigation of state vote counting processes before anyone is going to believe the result, either way ti goes.

    1. Where are you going to get that "non-partisan" commission from?

      Appointment by elected (partisan political) officials? Selection by the major political parties?

      I don't think you, or any one in government as a career, understands what "non-partisan" means. Non-partisan is not equal to bi-partisan.

    2. "I think until we can have a non-partisan commission confirm that this election is legitimate, the Senate should not permit any nominees to the floor, period."

      I would have thought by now that even you would recognize that your betters have scant interest in what you think.

      1. No I just want to know that this election was not the result of voter fraud. In America you win elections by getting the most votes, not by getting 4-5 cities to stuff the ballot box. There is reasonable cause here to suspect the legitimacy of this election and that should be looked into. And until such a time that this election appears to not have been tampered with it is a wise thing to limit the damage an illegimate president might cause.

        We did this in 2016 when the left claims it was Russians, and this deserves just as much, if not more, scrutiny.

  11. One interesting question that arises out of these scenarios is when does the Senate sets its rules? Could the Senate, for example, set new rules on January 3 with a Republican majority that institute a new filibuster rule and thereby frustrate the Democrat's agenda?

    1. The Senate can change rules by majority vote at any time, so any rule change under a Republican majority would be meaningless as soon as Democrats regain control (and vice versa)

      1. Right. In fact, that was exactly the "nuclear option", though strictly speaking, they didn't actually change the rules, they just upheld by a majority vote a ruling by the parliamentarian that the Senate rule permitting judicial nominations to be filibustered actually forbid it, and never mind the actual words.

        The rules, as written, still say that the nominations can be filibustered, they're just being interpreted to mean the exact opposite of what they say.

        They could put it back on the 3rd, but the Democrats could just as easily restore the phony interpretation.

        1. So the 11th amendment of procedural rules?

  12. First, the electoral process is not over yet. The legal votes have not been fully counted. And in a few cases...recounted, audited, and verified.

    Second, I expect that a Biden/Harris nominee will receive precisely the same treatment that POTUS Trump's nominees received in the Senate four years ago from Team D. What could possibly be more fair than a Biden/Harris nominee having the same experience and the same treatment? They should be treated no better, and no worse. That should not be a problem at all, right? No, didn't think so.

    Last, my inclination is that a POTUS gets to pick his own team. You know what? That works in business. And I don't see Biden any differently; he gets to pick his own team. That is the way the system worked for a long time, before it went off the rails in recent decades. I'd like to see a return to that tradition, frankly.

    1. Refresh my memory.

    2. Tell me again, which Trump nominee for the cabinet was not approved?

      1. I think he means that hardly any Dems voted for most Trump nominees and they dragged out the process as much as they could, not that they were defeated.

        1. That is correct. Every Biden nominee (assuming he is the winner), will receive exactly the same treatment as POTUS Trump's nominees did. I mean with the way DC is a leaky sieve, every story that comes out will have to be checked out. And yes, the Senate will have to check out the veracity of those future anonymously sourced, but oh so convincing and believable, reports from the press. They have to be checked out before any vote to confirm a nominee, of course.

          And you know Bob from Ohio, there are only so many Senate committee investigators, and only so many hours in a day. Sadly, those investigations could take months. Many months. It could be Hanukkah before even half the Cabinet is filled. Who knows, some cabinet positions might have to go unfilled.

          The same treatment: no better, and no worse.

          1. If you think what Democrats did in 2017 with Trump's nominations was wrong or immoral, but now endorse Republicans doing the same thing, you are either being hypocritical or have no principles. Exactly like Democrats in 2020 who endorsed the Republicans' ridiculous arguments from 2016 for not voting on a Supreme Court nominee in an election year. Tit for tat bad behavior "...is no way to go through life, son."

            1. They will receive the same treatment, no better and no worse. I don't see what the problem is.

              1. And that's the problem.

      2. A lot of them wouldn't have been if the GOP didn't control the Senate. Some Democrat senators, like that bitch Gillibrand, voted against every Trump nominee because it was Trump.

  13. Don't forget about the two independents in the mix. Usually a non-issue, but always a chance that the New Englanders could get their Irish up (viz, the DUP in the last UK cycle).

    Mr. D.

    1. You figure Angus King is a candidate for an 'I just realized I'm a bigot' press conference?

      1. That's not how confidence and supply works, though. It's an increased one-time cost (not necessarily a large one) incurred by bringing someone in on the whip when they're not positively required to be there. If Bernie and Angus don't hold out for a bit of de-centralization, they're squandering a bit of political capital.

        Mr. D.

        1. Yes, I'm sure Bernie will announce that he's going to caucus with the Republicans any day now.

  14. For the Georgia governor to appoint senators a few days before the runoff, in effect pre-empting the people's choice, would look very bad and might trigger a backlash in the actual election. And why would he bother? Even without Georgia, the Republicans have a 50-48 majority (or maybe 51-48, if Loeffler's term continues until the runoff).

    1. What I take from that is that Georgia's run-off date is incredibly stupid.

      I mean, it's easy enough to imagine a scenario where the Governor is from the opposite party. So we get a temporary Senator of the opposite party for a week or something?

      There are all sorts of stupid election rules around the country that could explode in particular situations. This is one of them.

      1. "Georgia’s run-off date is incredibly stupid"

        God yes. I could hardly believe it when I heard about it.

      2. I wonder if there is a law in Georgia that mandates it? I don't know just asking.

  15. "The chairman [of the judiciary committee] could effectively hold up nominations to the executive branch, as well as to the judiciary."

    Is this really the case? My impression is that the judiciary committee reviews nominees for the judicial branch, as well as the DOJ. But other committees handle nominees to other Executive branch positions. E.g., the Foreign Relations Committee handles the State Dept., the Armed Services Commitee the Defense Dept., etc.

  16. So, two to four years of Judge Garland is how you think we should proceed.

  17. My guess in the twin run-offs is that Trump, no longer interested since there is nothing in it for him, will take no part at all. His supporters in Georgia may well feel the same way and turn their back. Meanwhile, Democrats will be beyond highly motivated and with Warnock in the race the increased African American vote will spill over to Ossoff. I think there is a very good chance they both win. But, if the last few days have taught me anything its that no one really knows what will happen until it does.

    1. Contemporary Poli Sci 101 is that the president's party loses offices at every level of government throughout his term. I expect that to start for Biden on January 5, with the Georgia runoffs. Why would Democrats be more motivated than Republicans at that point?

      1. If anyone actively wants divided government, that would be an opportunity to cast a clean vote for it. And with too much attention to pull anything shady.

      2. What?

        I think you're expanding the "general theory" that the President's party loses seats in Congress during midterms. Which has been true (except when it hasn't, such as 1998 and 2002).

        But not all levels of government. And not all elections.

      3. I think it likely that both Georgia Senators will be Republicans the Presidential election will be over and historically these elections are low turn out which generally favor Republicans. Trump won't be on the ballot. The two major Republicans running for Loeffler's seat garnered almost 50% of the vote and the main losing Republican has now endorsed Loeffler. The leading Democrat got less than a third of the vote. I think he has peaked. Perdue got more votes that Ossoff although it was close. The Libertarian candidate created the runoff.

        We'll see, but I don't think that the runoffs will generate the kind of energy the Presidential election did.

        1. Maybe, but i don't think it is about anyone changing their mind but more about who bothers to show up.

    2. It's tough for me to see any significant number of people who voted for the runoff candidates making a different choice. And it seems unlikely that very many libertarian voters are going to choose Democrat control of the senate, and even less likely that the Collins voters are somehow going to break for Warnock. So I'd be very surprised to see either Democrat pull out a win. But certainly stranger things have happened.

      1. I think the most likely scenario for Democratic control is actually one or more of the RINOs switching parties.

        1. Once more, Brett: just because people aren't fanatic Trump supporters does not make them "RINOs." There are no "RINOs."

  18. It's worth pointing out that longstanding senate rules (since the mid-19th century, iirc), and custom from at least the early 19th century before that, prohibit the senate from voting for a judicial nominee without that nominee being presented to the full senate by the judiciary committee. So if the judiciary committee fails to vote yes on any nominee, or to even hold a vote at all, the full senate *cannot* hold a vote on them.

    1. There are two circuit court nominees, and roughly 30 district court judges and another ~10 article I judges. I expect them all to be confirmed during the lame duck session.

    2. Even the most long standing rules and custom in the Senate can fall to a single majority vote.

      I don't see the Republicans obstructing more than just at the margins, because of a much more fragile coalition that survives only so long as there are no defections at all.

  19. I would again suggest the best outcome for the country would be a split decision in Georgia. The Republicans would have control with 51 Senators but the control would be tenuous and Biden could work to pick off one Republican for needed appointments. Under this scenario it would be difficult to get appointment of judges either far left or far right, but moderate, middle of the road nominations would have a better chance. This would provide a influx of judges that would generally look at the merits of cases first, moving to a decision, rather than attempting to fit the fact of the case into their a decision along their judicial philosophy.

Please to post comments