David Waldman is a Constitutional Lawyer and the host of the Daily Kos radio show. Over the past few days he’s been presenting Democratic Senators with a plan that could finally get Merrick Garland appointed to the Supreme Court only days before Trump takes office. Mr. Waldman openly admits that sort of move he’s suggesting is not only unusual, but that it’s somewhat underhanded. But so was the year long refusal to accept any nominee to the Supreme Court. In fact, Republicans toyed with a very similar idea back in 2010 to get themselves a few extra seats in committees.
The whole plan hinges on the fact that the Senate – unlike the House – is a continuous body. While the House’s 438 Representatives go up for reelection every two years the Senate breaks itself into three ‘Classes,’ each of which face election every 6 years. That means that on January 3rd – the day the new Senate is sworn in – two thirds of Senate will already be seated and still in power. Nothing but precedent demands that they avoid conducting any business in that state.
It just so happens that the majority of the Senators who will be in limbo that day are Republican. Meaning that for a few moments, until the Class 3 Senators are sworn in, Democrats will have a slight majority. Furthermore, Mitch McConnell will not be the one presiding over the Senate on January 3rd. The Majority Leader only takes the floor after the new Senators are sworn in and they have a chance to choose him as their leader. For this, usually very brief, moment the Vice President acts as the “President of the Senate.”
If Joe Biden is willing to address the nomination of Merrick Garland (or anyone else this temporary Senate would like to appoint to the Supreme Court) then he could likely get that vote to pass and then go on to swear in the new Senate and turn his gavel over to Mitch McConnell. Mr. Waldon even believes that the group could escape a filibuster.
To be clear, this is a long shot. It’s also a bit unfair. But Republicans have been practicing blatant obstructionism for 8 long years. The worst example of which has been artificially holding up the Supreme Court nomination for a year. This plan would rectify that injustice and would only hold up the incoming Senators for a few minutes.
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