Roy Exum: Amy’s Road To Justice

Monday, October 19, 2020 - by Roy Exum
Roy Exum
Roy Exum

As one who has consistently groused over the alarmingly-low turnouts for elections in Southeast Tennessee in the last two decades, what a thrill it is to see record numbers standing in line to vote for those who they believe have earned their trust. I have always believed a person’s individual vote is among our democracy’s greatest freedoms. To now watch my countrymen and women enjoy that freedom, this time more than ever before, is as gratifying as anything I have witnessed in years. Who they vote for doesn’t faze me - that's the real beauty of it - but the fact that my friends and neighbors are totally involved in voting for what each individual believes is best for all of us is simply fantastic to behold and I salute each of you.

My second biggest thrill in this election year is to be introduced and become smitten by Supreme Court nominee Amy Coney Barrett, a Catholic mother-of-seven whose credentials and whose background has no known equal.

Her values and her character were stunning in the recent Congressional hearing. Obviously, there are other Americans very worthy of a seat on our Highest Court in the Land and our President, as his official responsibility requires, has presented the one he finds as most noble. I am ecstatic over his choice.

There is a prescribed waiting period following her Congressional hearings, which means the Senate Judiciary Committee will have fulfilled this first step by the middle of this week, but then what happens? It is pretty apparent she passed the hearings to the satisfaction of the majority. It is also apparent that some Democratic leaders will find fault with anyone Trump might suggest, especially with the Nov. 3rd election looming and the Leftists doing any and everything they can to obstruct any and everything until Election Tuesday.

Chad Pergram is a Congressional Correspondent for Fox News in Washington and he just plotted a “What’s next?” that details the protocol required for a candidate to be confirmed as a Supreme Court Justice. While the Senate Judiciary Committee will meet on Thursday, Pergram says don’t be surprised, elated, nor disappointed, if the actual approval doesn’t occur until less than a week before Election Day (Nov. 3):

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(Note: This story appeared on on October 15, 2020)

Here is the likely timetable for the prospective confirmation of Amy Coney Barrett to the Supreme Court:

As is custom, the committee is holding the nomination over for a week. The Senate Judiciary Committee will again meet to consider Barrett’s nomination at 1 pm ET on Thursday, Oct. 22.

The committee will vote to send the nomination to the floor (technically the “calendar,” but that’s another story). A nominee does not have to have a “favorable” recommendation from the committee to go to the floor. Robert Bork received an “unfavorable” recommendation from the committee in 1987 (and was defeated on the floor). Supreme Court Justice Clarence Thomas was sent to the floor with “no recommendation” in 1991 before being confirmed.

The committee will need a simple majority vote to advance the nomination to the full Senate.

Senate Majority Leader Mitch McConnell, R-Ky., (has already announced) that he would put the nomination on the floor on Friday, Oct. 23.

If the committee finishes the nomination on Oct. 22, the Senate can’t formally consider it until Oct. 23. Keep in mind, that could begin at 12:00:01 a.m. ET Friday if McConnell really wants to hit the gas pedal.

McConnell must move to shift the Senate into executive session (versus legislative session) to specifically consider the Barrett nomination. Such a process likely requires a vote -- but is not debatable (subject to a filibuster). That vote could be by roll call, a voice vote, or by unanimous consent (so long as there is no objection by any senator). Democrats could create some mischief at this stage by not having a quorum present or demanding a quorum be present -- but not helping constitute a quorum.

This step to go to executive session requires a simple majority. And once the Senate is in executive session for Barrett, the clerk “reports” (reads aloud) the nomination before this Senate.

There is no “motion to proceed” on this type of nomination, based on a precedent set in the late 1970s by the late Senate Majority Leader Robert Byrd, D-W.V. Thus, there is no way Democrats could filibuster just starting debate on the nomination. However, Democrats could try to filibuster on the back end.

At this stage, McConnell could file cloture (a legal word for ‘closure’) to curb debate and overcome a filibuster. McConnell could do this as early as this Friday, Oct. 23.

Regardless of when McConnell files cloture, by rule, the “cloture petition” (to end debate on the nomination) ripens for a vote after an intervening day.

So, if McConnell files cloture to end debate on Friday, Oct. 23, then Saturday, Oct. 24, is the intervening day. The cloture petition would ripen on Sunday, Oct. 25. By rule, the Senate can begin voting to end debate on the nomination one hour after the Senate meets, following the intervening day. Again, if they really want to hit the gas, this could happen at 1 a.m. ET on Sunday, Oct. 25.

But, we don’t know that they will move that expeditiously. It’s more likely the Senate votes to end debate on the nomination on Monday, Oct. 26, or later in the week.

Under the provisions of “Nuclear Option II” (where McConnell established a new precedent -- not a rules change -- lowering the bar to end a filibuster on Supreme Court nominations from 60 votes to 51 to confirm Justice Neil Gorsuch), the Senate would vote to end debate on the nomination. That entails a simple majority. Once cloture on the nomination is “invoked” (halting a filibuster), debate is then limited to 30 hours.

Once 30 hours have expired, the Senate may take an up-or-down vote on the nomination itself. It only needs 51 votes to confirm Barrett.

That’s why we believe the actual confirmation of Barrett won’t happen until the middle or end of the week of Oct. 25, likely Oct. 28-30.

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"So often in life, things that you regard as an impediment turn out to be great good fortune." -- Ruth Bader Ginsburg

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