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My understanding is the Vice President is constitutionally the president of the Senate, although they now usually only preside when a tie-breaker is likely to be needed or when required (e.g. counting Electoral College results).

Typically, the VP turns over their duties to the president pro tempore, who again typically turns over the day-to-day duties of actually presiding to junior senators of their party so they can learn parliamentary procedure.

This is governed by Rule I of the Standing Rules of the Senate:

In the absence of the Vice President, the Senate shall choose a President pro tempore, who shall hold the office and execute the duties thereof during the pleasure of the Senate and until another is elected or his term of office as a Senator expires.

For example, when Obama appointed Merrick Garland to the Supreme Court, Mitch McConnell refused to do anything. Now, as far as I can tell, a Judiciary Committee recommendation isn't required for a vote of the full Senate, and obviously, if they didn't have the votes, it would have been an embarrassing failure, but would Biden have technically been within his rights to force a vote on Garland's confirmation before the whole Senate?

Azor Ahai -him-
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2 Answers2

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US Constitution Article 1 Section 5 Clause 2: Rules

Each House may determine the Rules of its Proceedings,...

This includes how discussions are held and how votes are brought to the floor.

President of the Senate

Unlike in the House of Representatives, where the Speaker is both the presiding officer and the leader of the majority party, the presiding officer in the Senate (whether the Vice President of the US, the President Pro Tempore or a junior senator who is just filling in) has little political power according to Senate rules. The main powers are to cast tie-breaking votes and to make judgments about parliamentary rules (which can be appealed to the whole chamber - incidentally, this is how the "nuclear option" was invoked). Otherwise, the majority leader, committee chairs and even individual senators share the power, and the presiding officer must mostly act as they wish. If that means the majority leader (backed by the majority party) do not want to hold a vote, then the presiding officer must respect that under the rules.

Even if the presiding officer was particularly brazen and did not respect the rules, the senators in the majority could begin a quick rebellion using tactics like e.g. fleeing to eliminate a quorum (see below). At some point, the executive branch needs the Senate to accomplish its goals (e.g. passing appropriations), and so fomenting a rebellion among senators would be counterproductive.

Senate Rules

Why can't the rules change? The Senate is a permanent body since only 1/3 of senators' terms expire at the end of a given Congress, unlike the House of Representatives, where all members' terms expire at the end of every Congress. Since the Senate is permanent, its rules live on between Congresses. Rule changes require either a supermajority or the politically-fraught "nuclear option."

Rule VII(3)

The Presiding Officer may at any time lay, and it shall be in order at any time for a Senator to move to lay, before the Senate, any bill or other matter sent to the Senate by the President or the House of Representatives for appropriate action allowed under the rules and any question pending at that time shall be suspended for this purpose. Any motion so made shall be determined without debate.

This rule allows the presiding officer to supersede pending business with two major constraints: the superseding matter must be from either the President or the House or Representatives and whatever action must be an "appropriate action allowed under the rules." This rule is used for things like announcing that the president has made a nomination, that the president has vetoed a Senate bill or that the House has passed a bill, all three of which require action by the Senate. Other rules (both precedents and explicit rules in the Standing Rules) govern what the appropriate actions are (in general, a first reading and then referral to committee).

Quorums

The Constitution requires that each house can only conduct business when a quorum is present, and defines as quorum as a majority of members of each respective house. This means that if a minority party (or a presiding officer aligned with them) attempted to take command, the majority party could simply flee en masse, leaving only one member to raise points of order about the absence of a quorum and so on. The Senate rules allow a minority of the Senate to empower the Sergeant-at-Arms to arrest vacant members and bring them back to the Senate, but it would still be very hard to do this on a mass scale. (Something similar happened several years ago in Wisconsin, where a slim Republican majority in the state legislature were trying to pass legislation that would weaken unions, and Democrats in the state senate fled Wisconsin. Wisconsin requires a quorum of 60% of members, so in that case the minority party had an effective veto.)

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Andrew
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    Hooray for the egalitarian Senate! – elliot svensson Jan 10 '19 at 17:32
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    The House actually has an office called "majority leader" that is distinct from that of the speaker. – phoog Jan 10 '19 at 17:39
  • I think most of the answer here is in the last part of your first paragraph. Can you expand on that? – Azor Ahai -him- Jan 10 '19 at 17:41
  • How does Rule VII(3) play into this? It seems to give the VP the power to bring any matter sent by the president (or house of representatives) to the floor. – phoog Jan 10 '19 at 18:28
  • @phoog I've updated my answer to address your (good) question. – Andrew Jan 10 '19 at 19:21
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    Similarly to the Wisconsin case, a bunch of Texas Democrats fled that state in 2003 to avoid allowing a quorum on a redistricting measure. – Michael Seifert Jan 10 '19 at 21:03
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    Excellent answer. I was starting to outline an answer in my head only to look down and see that you'd already written it. – ohwilleke Jan 11 '19 at 18:14
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    "Each House may determine the Rules of its Proceedings,... This includes how discussions are held and how votes are brought to the floor." but that isn't really a counterargument to the assertion that the Senate has a duty to consider a nomination. If the Senate could shirk its constitutional duties by making rules, those duties would be meaningless. For example, if the Senate made a rule that it would assemble every 24 months, that would clearly be unconstitutional in the face of Article I, section 4. – phoog Jan 11 '19 at 18:50
  • @phoog Your argument is just an assertion without evidence and is also incorrect. The idea that a legislature is the sole judge of its own conduct was well-established by the time of the framing of the Constitution (see e.g. https://en.wikipedia.org/wiki/Five_Members#Background). The president is not an emperor; he or she can merely veto bills and call a session of Congress when it is adjourned. The courts lack any effective enforcement mechanisms against Congress, so consider such issues "political questions" that are "non-justiciable." – Andrew Jan 14 '19 at 15:48
  • @Andrew I am not saying that the Senate could be forced to assemble by the courts or the executive, only that the Senate has a clearly defined constitutional duty to assemble at least once a year. That the Senate can make its own rules regarding to how -- or whether -- it fulfills that duty does not mean that the duty doesn't exist. For an implicit duty such as the duty to consider a judicial nomination, therefore, the question of whether that duty exists should not depend on the fact that the Senate makes its own rules. – phoog Jan 14 '19 at 16:01
  • @phoog "Implicit duty" according to whom and implied by what? – Andrew Jan 14 '19 at 16:17
  • @Andrew implied by the advice and consent clause, according to several hundred law professors, at least. – phoog Jan 14 '19 at 16:26
  • @phoog That letter is pure political activism, which no one should begrudge the undersigned professors. Likewise, as a piece of activism absent a convincing argument ("and the Senate’s role is to provide “advice and consent”" fails per any conceivable mode - historical, logical or otherwise), it has no bearing on whether such "duties" exist, which is already something of a subjective and philosophical question. I'm going to step away, because I don't think we're going to convince each other, and I think I've steered a bit far away from what this politics.SE is meant for. – Andrew Jan 14 '19 at 16:44
  • @Andrew I don't doubt it's political activism. The question of whether the Senate is shirking its duties is a political question, after all. Are you saying that only duties that are explicit in the constitution exist? I should make it clear that I do not think the Senate does have a duty to bring every nomination to a floor vote, or even to consider it in committee. I'm only saying that the Senate's power to make its own rules has nothing to do with any constitutional duties it may or may not have with respect to outside matters. – phoog Jan 14 '19 at 17:00
  • Let us continue this discussion in chat. – Andrew Jan 14 '19 at 17:01
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Not really.

The Vice President, while technically a member of the Senate, is not really a Senator and their vote only comes into play for ties. In order to do that, the floor would have to let him do so (emphasis mine)

Other than to succeed to the presidency upon the death or resignation of a president, a vice president's only constitutional duty is to preside over the Senate. Vice presidents cannot vote in the Senate, except to break a tie, nor may they formally address the Senate, except with the senators' permission.

So, in this case, Biden would have needed the permission of the majority of Senators to do this. Since they were opposed, he would not have been given permission.

Machavity
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  • Is "formally addressing" the same thing as "bringing a motion to the floor as presiding officer"? – Azor Ahai -him- Jan 10 '19 at 17:29
  • @AzorAhai I don't see how you can bring something to the floor without formally addressing Senators – Machavity Jan 10 '19 at 17:30
  • "Formally address" sounds like delivering a speech. I take it that's a "yes" to my question, then? – Azor Ahai -him- Jan 10 '19 at 17:36
  • How is the vice president "technically a member of the Senate"? There is no formal definition of the term "member of the Senate," and the Senate rules frequently use the term in a way that obviously excludes the Vice President. But the question is not asking about whether the VP can vote in the Senate or even address the Senate, but whether as president of that house he can force them to consider a certain matter. – phoog Jan 10 '19 at 17:37
  • @AzorAhai No, "formal address" means to give a speech. Making a motion in the senate is a specific procedure only senators can do. The Vice President can only bind the Senate in the case of a tie-breaking vote. That is the beginning and end of the Vice President's power in the senate. Everything else is incidental and subject to the floor. – Andrew Jan 10 '19 at 17:59
  • @Andrew "Making a motion in the senate is a specific procedure only senators can do." That sounds like the answer – Azor Ahai -him- Jan 10 '19 at 18:05
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    This answer does not take into account Rule VII(3): "The Presiding Officer may at any time lay...before the Senate, any bill or other matter sent to the Senate by the President or the House of Representatives for appropriate action." – phoog Jan 10 '19 at 18:26
  • If it has to come from the desk of the President or the House of Representatives, it's not really 'forced by the Vice President' now is it? – Mazura Jan 11 '19 at 12:02
  • @Mazura the question is whether the VP can force the full Senate to vote on a particular matter. The matter in question is one that will necessarily come from the President. It therefore has no bearing on the discussion that the VP may be prevented from independently bringing any matter to the floor. For this discussion, the relevant question about that rule is whether it gives the VP the power to force a vote on a matter that was sent by the President. In other words, does "lay before the Senate" mean "bring to a vote on the floor"? – phoog Jan 14 '19 at 16:08
  • @phoog - It says that "the Presiding Officer *may*..." so, VP still needs the person running the circus even for that day, to allow then any kind of access, so I'm not seeing anything horribly inaccurate with this answer. – PoloHoleSet Jan 29 '19 at 21:20
  • @PoloHoleSet the VP is the person running the circus, according to the constitution. – phoog Jan 29 '19 at 21:50
  • @phoog - yes and no. The VP can formally preside over a session, but he/she would have no power to set the agenda, or any agenda items. – PoloHoleSet Jan 29 '19 at 23:10
  • @PoloHoleSet Rule VII(3) says that the matter need not be on the agenda, and whatever business is pending will be suspended. – phoog Jan 29 '19 at 23:16
  • @phoog - But other than presiding and casting a vote in case of a tie, I don't see anything that authorizes a non-Senator to raise a matter as new business - he/she doesn't have that standing. I could be wrong, but I don't get the sense that the VP acts like a "full Senator" when they decide to show up and preside. What they can do is very, very limited in scope. – PoloHoleSet Jan 29 '19 at 23:20
  • @PoloHoleSet How does the VP's power to "lay before the senate any matter sent by the president" not constitute authorization to raise a matter as new business (keeping in mind that the business in question is a nomination sent by the president)? – phoog Jan 29 '19 at 23:24
  • Let us continue this discussion in chat. – PoloHoleSet Jan 29 '19 at 23:25