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President Obama wants Congress to confirm Sonia Sotomayor to the Supreme Court before the Aug. 7 recess. She will first have to win a nod from the Senate Judiciary Committee, which Vice President Joe Biden (far left) used to chair. Senate Republicans have plenty of tactics at their disposal to delay a vote.
President Obama wants Congress to confirm Sonia Sotomayor to the Supreme Court before the Aug. 7 recess. She will first have to win a nod from the Senate Judiciary Committee, which Vice President Joe Biden (far left) used to chair. Senate Republicans have plenty of tactics at their disposal to delay a vote. Chip Somodevilla/Getty Images
President Obama wants Sonia Sotomayor, his nominee to the U.S. Supreme Court, confirmed "as swiftly as possible" and "in a bipartisan fashion." Senate Republicans don't seem to share the president's sense of urgency. But with Democratic majorities firmly in charge of the Senate, what can they do?
Quite a bit, actually. Their arsenal includes an array of delaying tactics that could make it hard for Democrats to meet the president's aim of having Sotomayor confirmed by Aug. 7, the last day before a five-week break. Using such tactics could please many on the political right who are uneasy about Sotomayor. It also could provide more time for interest groups and journalists to dig up additional — and potentially damaging — information about her.
Here's a list of moves that could put on the brakes:
1. Boycott the Judiciary Committee confirmation hearings. Committee rules say at least eight members must be present — and at least two of them must be members of the minority — for business to take place. So if at least six of the seven Republicans on the panel were to stay away, no executive action could be taken to advance the process, including voting to forward the nomination to the full Senate.
2. Flood the nominee with written questions. The committee normally waits to vote on reporting the nomination to the full Senate until the nominee has provided answers to written questions.
3. Request that the committee vote be delayed. Any committee member has the right to ask that a vote be held over for seven days or until the next business meeting, whichever comes later. Such requests have been made during consideration of other high court nominees, usually citing the need to study further the nominee's written and oral responses.
4. Invoke Committee Rule IV. This is the most potent weapon Republicans could wield to bottle up the Sotomayor nomination. Here's how it works: There's a motion to bring the nomination to a vote in committee so that it can be reported to the full Senate. If at that point a member invokes Rule IV, it means the committee cannot vote on the nomination until it first votes to end debate on the nomination.
That's similar to what happens in the full Senate, where a move to extend debate indefinitely — known as a filibuster — can only be overcome by 60 votes. Unlike these Senate "cloture" votes, a Rule IV filibuster-in-committee can only be stopped with the votes of 10 of the 19 committee members — including at least one member of the minority. In other words, if all seven committee Republicans refused to vote to end debate on the nomination, it could not be reported out of the committee. It's worth noting that one of those Republicans — Utah's Orrin Hatch — did vote to confirm Sotomayor as an appellate judge in 1998.
No Supreme Court nomination has ever been held up by Rule IV. Invoking it in the Sotomayor hearing would certainly break new ground in partisan warfare. It would also seem to repudiate an agreement Republicans insisted on in 2001, when they lost control of the Senate to Democrats because of Jim Jeffords' party switch. That accord, in a letter to colleagues signed by the new Democratic Judiciary chairman, Patrick Leahy, and the ranking Republican, Orrin Hatch, stipulated that even if a Supreme Court nomination were opposed by a majority of the committee, it would be reported to the full Senate. The joint letter, though, says nothing about how expeditiously such a nomination should be sent to the Senate.
5. Filibuster. This is always an option for the minority in the Senate, though it has rarely been used to hold up Supreme Court nominees. (Democrats, including then-Sen. Obama, tried unsuccessfully to filibuster Associate Justice Samuel Alito's nomination in 2005.) The problem for Republicans is that Democrats will have either 59 or 60 members in their caucus (depending on whether Minnesota's Al Franken is seated) by the time Sotomayor's nomination reaches the floor. What's more, in addition to Hatch, six other Republicans currently serving in the Senate also voted to confirm Sotomayor as an appellate judge in 1998.
So it could be more than just political posturing when Republicans talk about not rushing Sotomayor's confirmation. They have the means to prolong her consideration; the question will be whether they'll risk using them. Republicans could pay a high political price if key voting groups — especially women and Hispanics — are offended by possible dilatory actions carried out by the seven white Republican males on the Judiciary Committee.
Majority Leader Harry Reid has already indicated he's willing to keep the Senate in session into the August recess if Sotomayor's confirmation process has not concluded.