A sequel to Ed’s post this morning about what Biden and his party can do to fill the Breyer vacancy while Democrat Ben Ray Lujan recovers from a stroke. It could be that Lujan won’t be out for long (he’s expected to fully recover), in which case all Dems need to do is sit tight and hope there are no more illnesses in the caucus.
But remember that Republican Mark Kirk was out for nearly an entire year when he suffered a stroke in 2012. And even if Lujan’s recovery is much faster than that, Democrats are in a rush to get the nominee confirmed. They don’t want to have to wait, say, three months for Lujan to return and restore the 50/50 balance in the Senate.
Do they have any procedural solutions?
Ed mentioned the most obvious one: Biden could nominate someone whom he knows for a fact will get Republican support. Lindsey Graham has all but pledged to support Judge Michelle Childs of his home state of South Carolina if she’s the pick. James Clyburn, another South Carolinian and Biden buddy, is also pushing Childs hard. But Dems will be loath to confirm anyone other than Biden’s first choice to a lifetime appointment to the High Court just because Lujan might need another couple of months to get back to work. And Childs is older than both Ketanji Brown Jackson and Leondra Kruger, the other shortlisters. Dems want a young nominee so that they don’t have to worry about this seat again until 2050 or so.
How about proxy voting, then? If Lujan can’t be on the Senate floor in person, he could empower a colleague to cast a yay vote on his behalf. The House has been voting by proxy for nearly two years in order to spare members from having to risk infection with COVID by coming to the floor to vote. But Biden and Schumer have a problem — the Senate never adopted similar proxy rules. You’re still required to be present on the floor to vote in the upper chamber. Conceivably the Senate could change the rules now to allow proxy voting, but with Lujan unavailable they’d need Republican support to do so. Would there be any? Especially with the base screaming at Republicans to “fight” and not help the Democrats out with a rule change that would all but guarantee confirmation of Biden’s nominee?
There’s another alternative, though. Remember what happened in 2018 during Brett Kavanaugh’s confirmation vote? Lisa Murkowski had announced that she opposed Kavanaugh — but she voted “present” when his nomination finally came to the Senate floor. That was a courtesy to her Republican colleague, Steve Daines, whose daughter was getting married on the day of the vote, an event he simply couldn’t skip. With Daines present, the vote would have been 51/49 to confirm Kavanaugh. With Daines gone, it would have been 50/49. Doing Daines a favor, Murkowski declared that she would “balance” his absence by voting present instead of nay, restoring the two-vote margin to 50/48. Quote:
“While I voted ‘no’ on cloture today, and I will be a ‘no’ tomorrow,” she said, “I will, in the final tally, be asked to be recorded as present, and I do this because a friend, a colleague of ours, is in Montana this evening and tomorrow at just about the same hour that we’re going to be voting. He’s going to be walking his daughter down the aisle, and he won’t be present to vote, and so I have extended this as a courtesy to my friend.”
“It will not change the outcome of the vote, but I do hope that it reminds us that we can take very small, very small, steps to be gracious with one another and maybe those small, gracious steps can lead to more,” Murkowski said.
That’s known as “paired voting” and it used to be far more common in the old days, when senators couldn’t travel to and from Washington as quickly as they do now and often maintained separate careers apart from their political office. An assistant in the Senate Historical Office described the practice after Murkowski “paired” with Daines:
Holt said senators have been pairing votes since at least 1859, as a courtesy to each other. If one senator had to miss a vote, another senator who wanted to vote the opposite way would abstain.
Dating back to the 19th century, the custom fit with the Senate’s view of itself, as a place where gentlemen wouldn’t want to take unfair advantage.
“They, I think, mostly thought it would not be fair if a vote would go one way or the other, just because some senators were absent,” Holt said.
Senators are much more willing to take unfair advantage today but “paired voting” still happens now and then. Another notable example came in 2014, when Mike Pompeo’s nomination to be secretary of state came before the Senate Foreign Relations Committee. Republican Johnny Isakson would have been the deciding vote in Pompeo’s favor but he was called home to Georgia to deliver the eulogy at a friend’s funeral. His absence would have left the committee deadlocked. So Democrat Chris Coons, as a courtesy to Isakson, voted “present” instead of no to ensure the GOP’s advantage.
Would Murkowski or some other Republican be willing to extend the same courtesy to Lujan if he’s out of commission for months, voting “present” on the SCOTUS nominee to ensure a 49/49 tie that Kamala Harris could break?
Maybe not. Murkowski made a point of noting in the excerpt above that her “present” vote on Kavanaugh wouldn’t have changed the outcome. Voting “present” on Biden’s nominee would change the outcome if the vote would otherwise be 49/50. “Paired voting” to benefit the other party on something as high-stakes as a SCOTUS nomination would be surpassingly difficult to defend in an age of ruthless partisanship. Imagine if a few Senate Republicans were sidelined with illness shortly before Amy Coney Barrett’s confirmation. How do we think the Democratic base would have reacted to, say, Coons pledging to vote “present” in order to pair his vote with a sick Republican senator’s, facilitating Barrett’s elevation to the Court?
In the end, though, none of this might matter. That’s because Murkowski is depending on Democratic support to an unusual degree in her reelection bid this fall. Alaska holds a jungle primary, not partisan primaries, and Trump-backed Kelly Tshibaka is expected to gobble up all of the populist Republican vote. Murkowski will be left looking for ways to show centrist Republicans and Democrats that she’s a truly bipartisan independent voice in the Senate. Voting for Biden’s SCOTUS pick is an easy way to do that. If I’m right about her then Lujan’s absence means Dems are now down to a 50/49 advantage, not a 49/50 disadvantage. And of course Lujan might be back before we know it, rendering this moot. I’ll leave you with this.
NEW: @SenatorLujan is expected to return to DC in 4-6 weeks, following surgery for a stroke suffered last week, according to two senior Luján aides. He is expected to make a full recovery.
— Garrett Haake (@GarrettHaake) February 2, 2022