How to derail Donald Trump’s Supreme Court nominee

“In brightest day, in blackest night, no evil shall escape my sight” – Green Lantern. The electoral college’s folly is about to announce his latest assault on the judiciary with his second Supreme Court nomination which his Republican collaborators in the Senate will rubber stamp as per usual. This one, however, will have a profound effect on wide diapason of issues that will harm millions across the country from rolled back civil rights, environmental protections, labor protections, and the penumbral rights you enjoy in the privacy of your own bedroom. As the fabric of American society stares into the abyss, there are several heroes who can save us.

Who are these heroes and what awesome powers do they wield? They are the minority members of the US Senate Committee on the Judiciary. Their power derives from a magical secret word — “quorum.”

This word “Quorum”, when tossed out casually on the Senate floor, means a majority of the senators – which is fifty-one senators – must be present to conduct business. With Senator McCain sidelined, in theory, a single non-Republican senator would have to be present to conduct any business. However, quorums are presumed. But observing the absence of a single non-Republican senator, any procedurally conscious senator could rise and challenge the presumption of a quorum, “Mr. President, I suggest the absence of a quorum.” All business would then come to a complete halt while the clerk called the roll. If the call showed no quorum, then the presence of absent senators could be compelled (US Constitution Article I, Section 5, clause 1). Accordingly, on the floor, a quorum call could delay proceedings on a disastrous nomination, but ultimately could not prevent a wrong minded majority from voting on the nomination.

However, like Green Lantern’s lantern charging his ring, the rules of the Senate Committee on the Judiciary super charge the word “quorum”. Here’s how it works. Standing Senate Rule XXXI provides in relevant part, “When nominations shall be made by the President of the United States to the Senate, they shall, unless otherwise ordered, be referred to appropriate committees….”

Rule XXVI 7(a)(1) allows committees to establish their own rules as to what constitutes a “quorum”. Judiciary Committee Rule III QUORUMS Section 1 provides in relevant part, “Nine Members of the Committee, including at least two Members of the minority, shall constitute a quorum for the purpose of transacting business” (emphasis added). Provided that no more than one minority member of the Judiciary Committee is in attendance, then the Committee will not have a quorum to transact business. This means that the Committee cannot report the nomination out of committee. Bruce C. Cohen is the author of the Missouri Defendant’s Procedural Warfare Manual

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