Senate Democrats Should 'Lock Down 49 and Fight Like Hell' Against Trump Supreme Court Pick
There is ample justification for Democrats to demand that the confirmation process for any person this occupier of the Oval Office nominates to fill the Supreme Court vacancy left by Anthony Kennedy be postponed. First and foremost, Trump is under an active criminal investigation for conspiring with a foreign government to undermine a U.S. presidential election, and he may very well prove to be an illegitimate president in the eyes of the law. What's more, the Supreme Court determines things like whether a president has to turn evidence over in a criminal probe, or testify before a grand jury, or be indicted. The Supreme Court will inevitably hear Trump's criminal case and he's already got one judge there beholden to him, a judge whose seat could prove just as illegitimate as Trump's. Second, there's the McConnell Rule—no Supreme Court confirmations in an election year, not until the people have had a chance to decide the direction in which they want the country to go. With an essentially tied Senate, the argument is even more compelling.
These are clear, simple, and bedrock principles for Democrats to stand firmly behind in resisting any Trump nominee, but what can they actually do about it? Can they realistically stop it? Probably not, but not definitely not. There are no procedural silver bullets for them here, but there are plenty of delaying tactics. As former Harry Reid staffer Adam Jentleson says, the first thing all 49 Democratic senators need to do is to "get a firm mental grip on the new rules." Then, he says, they have to "Lock down 49 & fight like hell."
McConnell engineered a whole new Senate when it comes to the Supreme Court and Democrats need to exploit what they can there, because "If you play by the old rules, you're playing a fool's game." One element of that Democratic leadership seems to have adopted already—insisting on the McConnell Rule.
Within existing Senate rules though, there are things they can try to bring the Senate to halt. First, they always vote "no" on motions to proceed to executive session, when the Senate considers nominations and treaties. That means both objecting to any unanimous consent request to go into executive session and then voting "no" on the resulting motion to proceed. The Republicans just need a simple majority to do it, but this means they will have to be there to vote. It takes time. It's irritating. It will tie McConnell and team in knots.
This should be the Democrats' approach from here on out to everything coming to the floor—deny unanimous consent, and force a motion to proceed, because as the Congressional Research Service explains "the motion to proceed is itself susceptible to extended debate. As a result, even before a measure can itself reach the Senate floor, there may be a filibuster on the question of whether the Senate should consider it at all." They would be using the maximum amount of time and inflicting the maximum amount of pain.
Another option they should exercise is to deny a quorum. The Constitution requires that there has to be a simple majority—51 votes—present for the Senate to take any action on anything, be it legislation, amendments, or nominations. With Sen. John McCain sidelined and just 50 Republicans available, it could be challenging for Republicans to scrape a quorum together. Gregory Koger explores this option for Vox and notes that "In the month of June, there have been an average of 1.8 Republican absences across 18 roll call votes, so even if McCain returned to the Senate, the majority would struggle to consistently provide a floor majority." It's kind of genius and exactly the kind of passive-aggressive, nonpartisany procedure thing even a Joe Manchin could carry out.
This tactic would put pressure on every Republican to be near the chamber whenever the Senate is in session and Democrats are able to force a vote on any procedural question. If Republicans are busy in the morning raising money and holding committee meetings, Democrats can force them into the Senate chamber and keep them there. The same is true during peak fundraising time in the early evening, or if the Senate is in session on Friday, or during the month of August. Meanwhile, vulnerable Senate Democrats will be doing their part by staying out of the Senate chamber and using their time more productively.
Democrats can suggest the absence of a quorum 14,000 times a day, and then sometimes show up for quorum calls, and sometimes don't. If they suggest the absence of a quorum and then Republicans can't produce one, they have to adjourn. Of course, McConnell could send the Capitol Hill police out to find senators to force them to come to the floor, but again, that takes time.
Democrats can also use the Senate's rules that encourage debate. Whenever a Republican senator is speaking, a Democrat merely has to ask them to yield for a question and force them to defend themselves. For example, they could ask Sens. Susan Collins (R-ME) or Lisa Murkowski (R-ME) to talk about women's reproductive rights and the threat the Republican party (and a new Supreme Court justice) would impose. At the beginning of every day's session there's "leader time," in which Mitch McConnell talks about the day's business and pontificates, which provides a perfect time for Democrats to engage him in defending Trump's policy of stealing immigrant children from their families, or trying to end protections for people with pre-existing conditions, or Trump's tweet of the day, or Trump's cozying up to Kim Jong Un and Vladimir Putin. The are myriad ways to make McConnell uncomfortable.
What this requires, though, is 49 Democrats holding together and fighting like hell. The good part is, not all 49 have to fight like hell. Joe Manchin and Heidi Heitkamp and Jon Tester just have to keep their mouths shut and not show up, and by not showing up, throw a monkey wrench in the works. That's where we come in. We need to hold their feet to the fire to stand strong together. This is a profoundly discouraging time, which means there's no time for defeatism. Keep civil rights hero Rep. John Lewis's words in mind: "Do not get lost in a sea of despair. Be hopeful, be optimistic. Our struggle is not the struggle of a day, a week, a month, or a year, it is the struggle of a lifetime. Never, ever be afraid to make some noise and get in good trouble, necessary trouble. #goodtrouble"