GOP could still block Breyer's replacement on court
There’s one major problem facing Biden’s prospects, though: he might not be able to win confirmation for the expected pick. So much of influence in Washington isn’t in the press conferences or performative turns on cable news. The real power comes from mastering the process by which it is transferred, accumulated and defended. And, when it comes to managing a generational shift of power in America’s judicial system, no one has proven more adept than Senate Minority Leader Mitch McConnell.
The Senate is split 50-50, with Vice President Kamala Harris breaking the tie. So far, so good, given past Senators have changed the rules for judicial nominees to get across the finish line with just 51 votes. The so-called nuclear option is meant as a last resort, but with the exception of Chief Justice John Roberts, none of the current conservative Justices cleared a 60-vote benchmark.
But the nuclear option can go into motion only if the Judiciary Committee reports the nomination to the floor, a procedural move that says whether a majority on the committee recommends the full Senate consider the pick. Well, in a little-noticed backroom deal that took more than a month to hammer out, McConnell and Senate Majority Leader Chuck Schumer agreed to a power-sharing plan in February that splits committee membership, staffs and budgets in half. (A full nonpartisan analysis from the Congressional Research Service regarding the current process for nominees is here.)
Why does this matter? If all 11 Republican members of the Judiciary Committee oppose Biden’s pick and all 11 Democrats back her, the nomination goes inert. (A pretty safe bet in a committee where at least half of the Republican members have White House ambitions of their own.) The nomination doesn’t die, but it does get parked until a lawmaker—historically, the Leader of the party—brings it to the floor for four hours of debate.
A majority of the Senate—51 votes, typically—can then put debate about the issue on the calendar for the next day. But that’s the last easy part. When the potential pick comes to the floor again, it’s not as a nomination. At that point, it’s a motion to discharge, a cloture motion that requires 60 votes. In other words, 10 Republicans would have to resurrect the nomination of someone already blocked in the Judiciary Committee.
If Biden tries to send up someone like Garland again it would not surprise me to see the GOP block the nomination ir make it "inert."