President Donald Trump on Saturday announced Judge Amy Coney Barrett as his pick to replace the late Justice Ruth Bader Ginsburg on the Supreme Court. Now Democrats have less than 40 days to try to stop her appointment before the Nov. 3 election.
Trump has already said he wants a ninth justice in place because he believes the Supreme Court will decide the election, given legal challenges over ballot counting. The Senate Judiciary Committee reportedly plans to move forward with confirmation hearings on Oct. 12, and Senate Majority Leader Mitch McConnell (R-Ky.) said earlier this week that he will hold a floor vote for the nominee before the election.
There aren’t many options available to keep this from happening. But progressive activist groups and, increasingly, members of the party’s elite are pushing Senate Democrats to deploy every tool available to fight this nomination. Democrats are also being urged to threaten retribution for this appointment, if it comes to pass, in the form of adding justices to the Supreme Court and eliminating the legislative filibuster.
The next few weeks will set the stage for what kind of change will be possible for the foreseeable future. Since the Supreme Court has assumed the role of final arbiter in America’s political system, a sixth conservative justice would shift the court to the right on abortion rights, government regulation of corporations, campaign finance regulation and voting rights laws. Any federal government regulatory action to deal with climate change could be at threat ― as would the right to choose, antitrust actions to unravel corporate monopolies, and limits on campaign contributions made by the wealthy and corporations. It would be a seismic, generational shift.
Trump’s replacement of Ginsburg before the election, or during the lame-duck period if he loses the election, would be “illegitimate,” according to former Attorney General Eric Holder. Holder said Democrats should promise to add justices to the court if they win the presidency and the Senate in November.
“Everything should be on the table,” Sen. Elizabeth Warren (D-Mass.) said on Monday.
Senate Democrats have already made their first move to slow down the chamber’s operation. On Tuesday afternoon, Democrats invoked the “two-hour rule,” which limits the time when committees may hold hearings while the full Senate is in session. The move caused some committees to postpone their hearings on Tuesday.
“Justice Ginsburg’s dying wish was that she not be replaced until a new president is installed. Republicans are poised to not only ignore her wishes, but to replace her with someone who could tear down everything that she built,” Senate Minority Leader Charles Schumer (D-N.Y.) said in a statement on Saturday, vowing to oppose the nomination. “This reprehensible power grab is a cynical attack on the legitimacy of the Court.”
The move to invoke the two-hour rule suggests Schumer is willing to go to the mat to stop or slow this nomination ― and, if that fails, to make McConnell and Republicans pay for the hypocrisy of pushing to confirm a new justice four years after McConnell invented a rule that ‘forbade’ him from considering then-President Barack Obama’s nomination of Judge Merrick Garland.
While McConnell claims to have the support of at least 51 members of his caucus to bring the nomination to the floor for a vote before the election, he has also already lost the votes of Republican Sens. Lisa Murkowski (Alaska) and Susan Collins (Maine). Could more senators decide against the nomination if the process drags on past an election where the Democratic nominee, former Vice President Joe Biden, wins?
“We can’t let ourselves fall into this Mitch McConnell play,” Christopher Kang, chief counsel for the progressive judicial group Demand Justice, said.
“[The] public sentiment, it sort of feels to me a lot like the health care fight, where we just have to keep fighting this and you never know what’s going to happen,” Kang said. “You never know where you’re going to have the moment of impact.”
The Tactics
Adam Jentleson ― who served as spokesman for the former Democratic Senate Leader Harry Reid (Nev.), a notable procedural bruiser ― detailed some of the tactics that Democrats could deploy to slow down the nomination process in a New York Times op-ed on Monday.
Those tactics would include refusing unanimous consent for every item that comes to the Senate floor; forcing Republicans to appear for quorum calls; boycotting the nomination hearings in the Judiciary Committee; and promising retribution, in the form of adding seats to the court and eliminating the legislative filibuster, if the nomination goes through. These tactics, which were used to defeat the Affordable Care Act repeal vote in 2017, could provide a chance, however small, to extend the process past the election. A post-election vote could allow Democrats to gain a vote if astronaut Mark Kelly wins his Arizona Senate race in a special election that would put him in office at the end of November.
“Democrats’ options before the election may indeed be limited,” Jentleson writes. “But if they win, the only restraints will be their own ambition and will.”
These tactics are also laid out in a memo written by Senate procedural experts circulating among Democratic offices, first reported by The Daily Poster and The Intercept.
Normally, the Senate runs quickly thanks to the use of unanimous consent, which is when no senator objects to the rules for a bill’s consideration on the floor. Refusing unanimous consent would force the Senate to debate and vote on minor motions.
Demand Progress, a progressive activist group, is already running a petition calling on voters to contact their senators and demand they commit to refusing unanimous consent.
“We need Senate leadership to have a war room posture,” David Segal, executive director of Demand Progress, said.
Once unanimous consent is denied, the Senate requires a quorum of 51 senators to conduct business. Activists say Democrats should force Republicans to meet that quorum requirement by themselves, without any Democratic help, each time unanimous consent is denied. This would mean Republicans would need at least 51 members in Washington, D.C., to move anything through the Senate. Since the Republican caucus has 53 members, only two of the seven senators facing difficult re-election races could be absent at any time.
Democrats could also boycott the confirmation hearings in the Senate Judiciary Committee in order to deny legitimacy to the proceedings.
“If the hearings for Brett Kavanaugh did not change any votes, neither will these hearings,” Jentleson writes. “Attending confers legitimacy, and refusing to attend will send a powerful statement that they deem the process and the nominee illegitimate.”
The collection of progressive grassroots groups known as Indivisible are also advocating for Democrats to pull out all the stops to delay the nomination process, and for Republicans to vote against the nominee.
“We’re trying to be very clear with our members,” Ezra Levin, co-founder of Indivisible, said. “There is a pathway to victory. It is a difficult and uncertain path, but it isn’t hopeless.”
More than 80 Indivisible chapters in New York state sent a letter to Schumer demanding that Senate Democrats use every tool at their disposal to slow the nomination process. In Rhode Island, grassroots activist groups are calling on Democratic Sens. Jack Reed and Sheldon Whitehouse to do the same. The Sunrise Movement, a youth climate change organization, is sending members to the houses of Democrats and Republicans, while flooding their offices with calls asking them to oppose the nomination and use any procedures available.
Activists are also working to target Democrats who might sit out their push for an all-out tactical assault. Demand Progress urged progressives to call the office of Sen. Maggie Hassan (D-N.H.) after a spokesperson for her office stated she was “extremely frustrated” by Schumer’s use of the two-hour rule, which delayed a Senate Intelligence Committee hearing on Tuesday.
And there is talk about how the Democratic-controlled House, which does not vote to confirm Supreme Court justices, could play a role in delaying a vote in the Senate.
Ideas that have been floated by progressive groups include the House passing privileged resolutions or bills that the Senate, by law, must hold proceedings on. These could include a War Powers Resolution or a Congressional Review Act bill stripping a Trump administration regulation. It could also include the impeachment of a Trump administration official, like Attorney General William Barr, for turning the Department of Justice into an arm of the Trump campaign, or Secretary of State Mike Pompeo, for using his office to campaign for Trump, including his speech in Jerusalem for the Republican National Convention.
Speaker of the House Nancy Pelosi (D-Calif.) said that House Democrats have “arrows in our quiver” that can be used to muck up Senate proceedings, although she has not gone into detail.
Rep. Alexandria Ocasio-Cortez (D-N.Y.) previewed a potential push to impeach Barr at a joint press conference with Schumer on Sunday. She called the attorney general “unfit for office” and said he has engaged in “potentially law-breaking behavior.” Ocasio-Cortez had previously called for Democrats, both in Congress and the grassroots, to do everything possible to create a chance to defeat Trump’s nominee.
“We must commit to allowing, to considering, and to utilizing every single procedural tool available to us ― yet again, to buy that time,” Ocasio-Cortez said.
While activists on the ground are pressuring Democrats to deploy every tactic possible, they may not be necessary just yet.
“I think it’s a little bit early to see how that all plays out,” Kang said. “I don’t think it makes sense for Democrats to start objecting to unanimous consent agreements today.”
But, he added, “as we get to the hearing, I think that boycotting the hearing should be on the table. I think all options should be on the table in terms of how we might respond in this moment.”
Retribution
The path for Democrats to defeat Trump’s nominee is admittedly slim.
“We should not fool ourselves that through these tactics McConnell will give up,” Levin said. “At the end of the day, McConnell can call a vote whenever he wants, when he has the votes. That’s it.”
This is why some activists believe it is necessary to explain that Democrats will not take McConnell’s baldfaced hypocrisy, or his disingenuous power play, lying down. They say Democrats should make it clear that if this pick sails through and they win the White House and the Senate, they will add seats to the Supreme Court, expand the lower courts, eliminate the Senate filibuster for legislation and admit the District of Columbia as the nation’s 51st state.
“Committing to these changes now will enable Democrats to move quickly if they take back power,” Jentleson writes.
These changes are even now being discussed. The House has already passed legislation to admit D.C. as the 51st state. Former President Barack Obama called for the Senate to eliminate the filibuster, which he called a “Jim Crow relic,” at the funeral for civil rights icon John Lewis in July. And after Ginsburg’s death, House Judiciary Committee Chairman Jerrold Nadler (D-N.Y.) said that Democrats should “immediately” move to expand the court if Trump’s nominee is confirmed.
So far, Biden has demurred on this issue, instead calling for pressure on Republican senators to act out of conscience not to support the president.
“Action and reaction, anger and more anger, sorrow and frustration at the way things are in this country now politically,” Biden said on Sunday. “That’s the cycle that Republican senators will continue to perpetuate if they go down this dangerous path that they put us on. We need to de-escalate, not escalate.”
There is an ongoing debate over whether threatening retaliatory action before the vote would do anything to help defeat the nomination.
“I don’t think posturing now will do anything to change the way Republicans will act,” Segal said. But, he added, even though it may not sway McConnell, it may be worth it “to establish a moral case for fundamental structural reform of the Senate and the courts.”
This is particularly true as McConnell has revealed that he does have the 51 votes needed to confirm whoever Trump nominates.
“It’s becoming increasingly necessary to think ahead to what the next step is,” Kang said. “And from my perspective, I think that adding seats would maybe be the only logical response.”
Still others think that Democrats should loudly trumpet their intentions to add members to the court or to enact other reforms like jurisdiction stripping. The intended audience for this wouldn’t just be McConnell and the broader public, but Supreme Court Chief Justice John Roberts.
The court’s spring term saw Roberts emerge as the vital swing justice on nearly every issue. It was also a term that saw a number of unexpected wins for liberals, and left conservatives howling that Roberts was another traitor to the movement like former Justice David Souter. Much of the commentary after the end of that term indicated that Roberts’ moderate turn was partly a move to preserve the court’s legitimacy amid talk of court expansion.
Continuing to pressure the court with threats of expansion could be important for Democrats ahead of the election, which Trump has signaled he plans to contest and possibly steal through any legal means available.
“People are not seeing that the conversation over court expansion is about the election,” said Aaron Belkin, director of Take Back the Court, a group advocating to expand the Supreme Court.
Roberts “is a politician in a robe,” Belkin added. “He is trying to do whatever he can to win elections for Mitch McConnell and push the country in a direction of hyper-conservative values, but he will only push as far as he can get away with. And the court expansion conversation is the most potent reminder that his court is illegitimate.”