Democrats hold a thin 11–10 majority in the Senate Judiciary Committee. Senator Dianne Feinstein is currently absent from the Senate due to health issues. Without her vote, the committee is deadlocked 10–10 and judicial nominations cannot get out of the committee for a full Senate confirmation vote without Republican support.

The Democrats have a 51–49 majority in the Senate (including the 3 Indepenents who caucus with Democrats) or 50–49 with Feinstein's absence. Cannot Democrats simply use a discharge petition to bypass the Judiciary Committee and bring the judicial nominations the full Senate?

For example, during the 117th Congress, the Senate was split 50–50 and the Senate Judiciary Committee was split 11–11. The committee vote on the Ketanji Brown Jackson nomination resulted in a 11–11 tie and a discharge petition was used to advance the nomination to the full Senate. Why this cannot be used now?

1 Answer 1


Senate Consideration of Presidential Nominations: Committee and Floor Procedure, Updated February 21, 2023

Discharging a Committee from Consideration of a Nomination

It is fairly common for the Senate to discharge a committee from consideration of an unreported nomination by unanimous consent. This removes the nomination from the committee in order to allow the full Senate to consider it. When the Senate discharges a committee by unanimous consent, it is doing so with the support of the committee for the purposes of simplifying the process.

Under the regular rules of the Senate, it is unusual for Senators to attempt to discharge a committee by motion or resolution, instead of by unanimous consent, and only a few attempts have ever been successful. Senate Rule XVII does permit any Senator to submit a motion or resolution that a committee be discharged from the consideration of a subject referred to it. The discharge process, however, does not allow a simple majority to quickly initiate consideration of a nomination still in committee. It requires several steps and, most notably, a motion or resolution to discharge is debatable. This means that a cloture process may be necessary to discharge a committee. Cloture on a discharge motion or resolution requires the support of three-fifths of the Senate, usually 60 Senators, and several days of floor time.

In the 117th Congress, the Senate created a temporary process to allow a Senate majority to discharge a committee from consideration of a nomination. The process, established in S.Res. 27, is no longer available.

  • The last paragraph seems... Odd. The idea that an instrument used once is no longer available seems designed to channel thinking away from it. The mechanism can clearly be used again, it is another one of those 'nuclear options' we hear so much about.
    – Jontia
    May 1, 2023 at 19:34
  • @Jontia - S.Res.27 addressed the problem of the 50-50 split in the Senate with the 117th Congress. It may be used again should there be another tied Senate. The "nuclear option" may be used without regard to a tie.
    – Rick Smith
    May 1, 2023 at 20:08
  • You'd need more detail about the process from S.Res 27. If it allowed a majority to discharge a committee from consideration simply because it was a majority then it can be used over and over. A 50/50 split in the main chamber has no bearing I can see on committee process.
    – Jontia
    May 1, 2023 at 20:20
  • @Jontia - Committees were also split 50-50: composed equally of members of both parties.
    – Rick Smith
    May 1, 2023 at 22:06

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