Can the Senate force a Supreme Court nomination vote?
What happens to a bill that lawmakers want to bring up for a vote, but the majority party’s leadership block it in committee or refuse to add it to the floor schedule? Is it doomed to spend the remainder of the congressional session sitting idle, or is there a way for supporters to force a formal vote on the measure in the House or Senate?
As it turns out, there’s always hope for bills in that situation thanks to a bit of rarely used procedural jiu-jitsu known as a “discharge petition” which provides a pathway for legislation to advance if it has enough support.
Essentially, a discharge petition is like a “Advance to GO, Collect $200” Monopoly card, allowing a bill to skip past hearings, committee votes, Ventor Avenue, and all the rest, on the way to a final vote on passage.
Lawmakers in both the House and Senate have discharge petitions at their disposal, though the process works a little differently in each chamber of Congress.
In the House, a discharge petition can only be filed if the bill it pertains to has been idle for 30 legislative days, at which point supporters must gather the signatures of a majority of House members (218 to be exact) in order to force the committee to release the bill. If supporters have met that signature threshold, and the committee doesn’t act within seven days, then the bill can be brought to the House floor for a vote.
Things get a little more complex in the Senate, where discharge petitions can be used for normal bills in addition to executive branch and judicial nominations (like for a Supreme Court vacancy). Legislation that’s the focus of a discharge petition can still be blocked by the filibuster, so supporters must have the backing of at least 60 Senators in the process to prevent it from being stopped.
Senate Minority Leader Harry Reid (D-NV) has hinted that Democratic Senators may try to use a discharge petition to force a vote on the nomination of Merrick Garland to the Supreme Court. For that to be successful, however, the 46 Democrats in the Senate would need to gain the support of 14 Republicans — which may prove to be too tall a task.
Not only that, but before a nomination-related discharge petition can be considered, the Senate first has vote to go into executive session rather than legislative session. A majority vote can prevent that from happening. But if they don’t, Senators still can stop the petition through another majority vote opposing the nomination. If the discharge petition survives all that, supporters must still clear the Senate’s 60-vote threshold to force a confirmation vote on the appointment.
All this helps explain why there have only been three successful uses of a discharge petition in modern times, all of which were done by the House. It was used in 1986 to approve a gun-rights bill backed by the NRA, the 2002 McCain-Feingold campaign finance reform bill advanced thanks to the tactic, and in 2015 the House utilized the process to try to reauthorize the Export-Import Bank.
As for Supreme Court nominations? This would be the first time in the history of our country.