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Did the Senate just break its own rules?

07 Oct

Yesterday, Brett Kavanaugh was confirmed to be a Supreme Court justice with a vote of 50 – 48 in the Senate.  We have been told repeatedly that the so-called “nuclear option”, a new rule put into place by the Republicans to get Trump’s earlier nominee, Neil Gorsuch, onto the court means that a Supreme Court nominee needs a “simple majority of 51 votes” to be confirmed.  Prior to the Gorsuch nomination (and subsequent confirmation), the Senate rules required a majority of 60 yes votes to confirm a justice to the Supreme Court.

Kavanaugh did not get 51 votes. He got 50.

One Republican dude, Steve Daines of Montana, who would have voted yes, was at his daughter’s wedding and did not come to DC to vote – his vote would have given Kavanaugh the full 51 votes required to confirm. Republican Senator Lisa Murkowski of Alaska was going to vote no, but instead voted “present”, which is the same thing as “I decline to vote one way or the other”, so her vote didn’t count in the final tally.  Had Daines and Murkowski both actually voted, and voted the way they said they intended to, the final count would have been 51 – 49.   With Daines not there to cast a vote, had Murkowski voted the way she intended, the final vote would have been 50 – 49.  Murkowski said she voted “present” because it would be too embarrassing for Kavanaugh to be confirmed by only one vote.  To put it more simply, the fact that Daines did not show up to cast his vote meant that Kavanaugh could not get to 51 votes, because Murkowski felt she could not change her vote to a yes under any circumstances.  (Good for her, because Kavanaugh is a far rightwing prick who wants to overturn Roe v Wade, helped write torture excuses for Bush, favors corporations over workers and corporations over environmental concerns, thinks NSA spying is somehow constitutional, agrees with indefinite detention, agrees with unlimited political spending and gerrymandering, believes a president has unlimited power, and does not believe in the separation of church and state.  And that’s just off the top of my head.)

It is now apparent that the “51 vote simple majority” phraseology contradicts itself.  Or that “the rule” is not a rule at all.  Is it the rule that 51 votes are needed, or is it that a simple majority of those showing up to vote are needed?

Because if the threshold is not 51 votes, but instead a simple majority, then you could hypothetically confirm a nominee under very weird and clearly undemocratic circumstances.  Supposing that only 10 senators showed up to vote on a nominee’s confirmation – would he still be confirmed if the vote were 6 – 4?  Or imagine a scenario where all 100 senators showed up, but 97 of them voted “present”, with only 3 actually casting yes or no votes, as another example.  Could someone make it to the Supreme Court with only two senators voting in favor?  Would these situations still count as a legitimate confirmation vote?

So which is it?  Is the rule “51 votes”, or is it a “simple majority of whomever bothers to cast a vote”?   Because if it’s the latter, that renders the whole idea of mentioning a specific threshold number moot; but the nuclear option rule clearly stipulates a number.  Throughout this entire process, as with the nomination of Gorsuch, the public has been told repeatedly that the nominee needs 51 votes, and the media and politicians spent a lot of time counting the possible ‘yes’ votes in advance to predict if the person would meet that number.  You can read any number of articles on the topic, look it up on wikipedia, google the information, and every time you will see that the Senate rule is stated as being that a Supreme Court nominee must receive a “51 vote simple majority” to be confirmed.

Here is the wording of a wikipedia article on the “nuclear option”, for instance.  Note that the phrase “simple majority” is defined as 51 votes, as it is in every other article about the topic:

The nuclear option (or constitutional option) is a parliamentary procedure that allows the United States Senate to override a rule – specifically the 60-vote rule to close debate – by a simple majority of 51 votes, rather than the two-thirds supermajority normally required to amend the rules.

Seems to me someone just arbitrarily changed the “simple majority of 51 votes” to mean “simple majority” without explanation.  We can only take a stab at it and guess that the Senate didn’t mean the “51 votes” part of their own rule.  And the media has not noticed.  But then we live in an age where lies are called “alternative facts”; no-one can keep up with the random bullshit being flung far and wide, and no-one can be held to account for anything.

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Posted by on October 7, 2018 in Congress

 

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