How do you solve a problem like a Republican boycott?

Democrats hindered from advancing some nominees from committee because of a Senate rule, as long as no Republicans show up for a vote

Senate Majority Leader Charles E. Schumer, D-N.Y., introduces Nina Morrison, nominee to be U.S. District Judge for the Eastern District of New York, during her Senate Judiciary Committee confirmation hearing Wednesday.
 (Tom Williams/CQ Roll Call)
Senate Majority Leader Charles E. Schumer, D-N.Y., introduces Nina Morrison, nominee to be U.S. District Judge for the Eastern District of New York, during her Senate Judiciary Committee confirmation hearing Wednesday. (Tom Williams/CQ Roll Call)
CQ Roll Call staff writer Caitlin Reilly (Bill Clark/CQ Roll Call)
Posted February 17, 2022 at 5:00am, Updated at 11:57am

Senate Republicans have flexed their minority power to stop the confirmation process for several of President Joe Biden’s nominees, using the chamber’s rules in a way that also could cause trouble for Democrats on an upcoming Supreme Court pick.

Senate experts say the Democratic majority can stick together and ultimately find a way to overcome or change rules to force through nominations. It’s just, at this point, Democrats aren’t sure exactly how to make that move, if they need to make such a move now, or if it’s worth it to do it for the currently delayed nominees.

If Democrats have a procedural strategy, they’re not tipping their hand. Senate Majority Leader Charles E. Schumer, when asked Wednesday, said only: “We’re going to look at this carefully.”

And for now, Democrats are just hoping Republicans will come around, without having to push the Senate down that path.

The issue is that certain Senate rules have more bite when the chamber is evenly divided at 50-50, as it is now, where Democrats have the majority because the tie-breaking vote is Democratic Vice President Kamala Harris.

Every committee is evenly split along party lines. But some committee rules, and more importantly a Senate rule, require a majority of the members of the committee be physically present at a committee vote that moves nominees to the floor.

On Tuesday, Republicans simply didn’t show up to a Banking Committee meeting for a slate of Federal Reserve nominees, stating that they wanted more answers from one of them. Chairman Sherrod Brown of Ohio said a Republican would have to show up to hold a vote and move the nominees to the floor for a confirmation vote.

Democrats on and off Capitol Hill are focusing on trying to make committee boycotts untenable for Republicans. Democratic National Committee Chair Jaime Harrison told reporters Wednesday that the Banking panel Republicans were standing in the way of efforts to combat inflation.

“We will call [the Republicans] out for their refusal to fight for the American people, for their disregard for working families, and for playing politics with their constitutional responsibilities,” Harrison said.

Maneuvers?

Senate rules experts say Democrats could use strategies to maneuver around those rules and eventually set up a floor vote. For example, a committee might hold a voice vote to send those nominees to the floor — since there would be no Republican there to object.

But that could kick off another potential procedural tangle. A senator may raise a point of order on the floor against the nominee’s consideration if it violates the Senate rule, the Congressional Research Service states. Such a point of order would be ruled on by the presiding officer, as it reflects the advice given by the Senate parliamentarian based on precedents.

Right now, it’s unclear what such a ruling would be or what precedents would be relied on, or how exactly Democrats would need to set up such a ruling to allow them to move to confirmation votes.

The Senate has changed rules around nominations in recent years: in 2013, for judicial and some other nominees; in 2017, for Supreme Court nominees; and in 2019, to reduce the floor time needed for consideration of nominees.

Brown told reporters Wednesday that it’s not clear there is a change to Senate rules for Democrats to make on the boycott issue. The only option is to get unanimous agreement to go to a confirmation vote, Brown said, and so his focus is instead on convincing Sen. Patrick J. Toomey of Pennsylvania and other committee Republicans to end the boycott.

“I just want to encourage them to do their jobs, and eventually they will. I am confident eventually they will,” Brown said in an interview. “I don’t know what ‘eventually’ means.”

Toomey on Wednesday didn’t directly answer how long he might continue a boycott, but he called the possibility that Democrats might change Senate rules to force floor votes on the nominees “extremely speculative.”

“I mean, I suppose you could say a majority can do anything it wants, I suppose,” Toomey said. “But that's very, very speculative and would be so outrageous.”

Committee member Sen. Elizabeth Warren, D-Mass., said Tuesday on the Senate floor that Republicans were violating the spirit of the agreement the Senate reached last year outlining how nominations should proceed in the evenly split chamber, and “it is up to the Democrats to enforce it.”

But Warren said in an interview Wednesday that the Democrats’ “principal tool” to enforce that agreement “is to talk quite publicly about how the Republicans are putting our economy at risk by keeping the Fed understaffed.”

Schumer, when asked how he would respond to the Banking Committee boycott, told reporters: “Well, we hope that Chairman Brown and Sen. Toomey can work this out.”

This wasn’t Republicans' first boycott. They boycotted Small Business Committee votes for the nomination of Dilawar Syed to be deputy administrator of the Small Business Administration and objected to committee Chairman Benjamin L. Cardin’s request for unanimous consent to bring the nomination to the floor. Syed now plans to take a job at the State Department. The White House emphasized that Syed is still the nominee for the SBA position and it is still pursuing his confirmation.

Missouri Republican Josh Hawley, a member of the panel, has connected the boycott to Syed’s ties to a Muslim get-out-the-vote organization and said the group made antisemitic comments when criticizing Israel’s treatment of Palestinians. More than 200 civil rights, Jewish and other faith-based organizations rejected those claims in an August letter to the committee, saying the Republican boycott was “tinged with religious bigotry and xenophobia” and “flagrant anti-Muslim animus.”

Same for SCOTUS?

Those current controversies brought new life to questions about the potential for a Republican boycott for a Supreme Court nominee at the Judiciary Committee when Democrats seek to move her nomination from the committee to the Senate floor.

Biden said he will select a Black woman by the end of the month to fill the upcoming vacancy when Justice Stephen G. Breyer retires at the end of the term in June.

Republicans, including Judiciary Committee members John Cornyn of Texas and Lindsey Graham of South Carolina, have so far spoken of having a “respectful” Supreme Court confirmation process and thrown cold water on the idea of a boycott. It would take all the Republicans to agree not to show up to a committee vote.

Sen. Charles E. Grassley of Iowa, the panel’s top Republican, said Wednesday that he has no recollection of participating in a boycott of committee votes in the past 42 years on the panel. “So I’m only going to talk about what my practice has been in the past; I’m not going to speculate on the future,” Grassley said.

But he said Republican discussions have focused on the opposite tactic, with members getting encouragement not to make a spectacle out of the Supreme Court confirmation hearing and not to “get down in the gutter like the Democrats did” with now-Justice Brett M. Kavanaugh’s confirmation in 2018.

Hawley, who also sits on the Senate Judiciary Committee, did not rule out a boycott if Republicans object to Biden’s Supreme Court nominee. Democrats boycotted a committee vote for Justice Amy Coney Barrett in 2020, but back then Republicans held a 12-10 advantage on the panel, so they could satisfy the rule requiring a majority themselves.

“On multiple committees, you’ve seen the Republicans deny the Democrats a quorum when there are really serious issues,” Hawley said Wednesday. “I hope it wouldn’t come to that on the Judiciary Committee. I hope they’ll send us a solid consensus nominee.”

Judiciary Committee Democrats also expressed a desire Wednesday to avoid a rules showdown over a Supreme Court nominee like those at other committees.

“I think at this point, we’re just going to work with having a good nominee who it’s hard to oppose,” Sen. Sheldon Whitehouse of Rhode Island said.

Sen. Alex Padilla of California said: “We certainly hope that Republicans don’t resort to that.”

And Judiciary Committee Chairman Richard J. Durbin said Wednesday that he hopes a boycott doesn’t happen. “If this is going to be a generalized effort by the Republicans to shut down the Senate, I don’t think it’s going to be very popular in the country,” the Illinois Democrat said.

But Durbin didn’t comment on the possibility that Democrats might have to figure out a way to deal with Senate rules to get a confirmation vote. “It’s way too soon; I’m not going to speculate on that,” Durbin said.

Niels Lesniewski contributed to this report.