April 26, 2016

April 26, 2016 | Factsheet on Supreme Court

Can Democrats Force a Vote on the Nomination of Merrick Garland?

Recent press reports suggest that Senate Democrats may seek to use a motion to discharge to force a procedural vote on the nomination of Judge Merrick Garland to the U.S. Supreme Court. A motion to discharge gets around the committee process by attempting to bring the nomination directly to the Senate floor. However, motions to discharge are in order only when the Senate is in executive session. Moving from legislative session to executive session requires unanimous consent; absent the consent of all members, the Senate can move to executive session only by majority vote.

Legislative vs. Executive Session

The Senate operates in two general postures: legislative and executive. All bills and amendments are considered in legislative sessions, and nominations and treaties are dealt with in executive sessions. Moving from one posture to the other requires unanimous consent or, absent consent by all Senators, a majority vote.

Motion to Discharge and Discharge Resolution

    A motion to discharge is in order only when the Senate is in executive session. Any Senator who is recognized could move that the Senate enter executive session. The motion could be agreed to by unanimous consent or by a majority vote, assuming a quorum is present.

    Once the Senate is in executive session, a Senator may be recognized to submit a discharge resolution and ask unanimous consent for its consideration by the full Senate. If there is an objection, the resolution lies over until the next executive session on another calendar day. The resolution then waits on the Executive Calendar, where it is available for any Senator to make a non-debatable motion to move to enter executive session and take up the discharge resolution. Should the Senate move to executive session, the discharge resolution would then be before the Senate for consideration. Should the motion to enter executive session to consider the resolution fail, the resolution would remain on the calendar and could be subject to additional votes.

    Moving to executive session to consider the discharge resolution is not debatable and thus requires only a majority of support. However, the discharge resolution itself is debatable as well as amendable and would thus be subject to the cloture process, which requires 60 votes to move forward.

    Should the Senate ultimately agree to the discharge resolution, the nomination would be placed on the Executive Calendar where, after lying over for one day, it could be brought to the floor by a simple majority for consideration. The nomination is debatable and would be subject to the cloture process.

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