“Senate Republicans refused to give President Obama’s pick to replace Supreme Court Justice Scalia even the courtesy of a hearing. It was disrespectful, and historically unprecedented.
But there is still something we can do to get Merrick Garland confirmed before Obama leaves office.
At 12:00 noon on January 3, 2017 (according to the Constitution), the terms of 34 U.S. Senators will expire. At that point, the Senate will briefly consist of 66 sitting senators—until Vice President Joe Biden, in his capacity as Senate president, begins swearing in the senators-elect.
Before Biden begins the proceedings, he will preside over a Senate that consists of 34 Democrats, 2 independents & 30 Republicans—as the remaining Senators are not sworn in yet.
At this point, Democrats could ask to finish Senate business as it pertains to President Obama’s nomination of Judge Garland.”
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But whatever changes to Senate rules the Nevada Democrat decides to pursue, Democratic Sens. Jeff Merkley of Oregon and Tom Udall of New Mexico told reporters they expect any package would garner the votes need to move on the floor, either using the constitutional or nuclear option of changing the rules with a simple majority or a bipartisan deal with a higher threshold.
“Most serious reforms of the rules occur because a leader has 51 votes behind them, and that’s where Harry is now,” Merkley told reporters. “That is what enables him to negotiate. On the other hand, if the negotiations succeed … that’s great. It would be wonderful to have a bipartisan agreement.”
“I think he has a real instinct as to what will make this place work better, and so I’m of the opinion that when he gets to that final point,” the caucus will back him up with at least 51 votes, Udall said.