When hearing the news of Supreme Court Justice Ruth Ginsburg’s passing last Friday evening, many of us paused to grieve and to contemplate her towering legacy. Hundreds gathered immediately to mourn her outside of the Court, lighting candles and comforting each other in this terrible loss. They recounted her many contributions to American jurisprudence from her own arguments in front of the highest court to her opinions, including dissents, that laid out a vision of equal citizenship in America.
Someone who did not pause, however, was Senate Majority Leader Mitch McConnell. Shortly after Justice Ginsburg’s death was announced, he made clear that he would work with President Donald Trump to fill her seat. Anyone who might have been surprised at his quick repudiation of his own statement in 2016 (asserting that in a presidential election year, Supreme Court nominees should be held in abeyance because “the voters should decide”) could only be accused of being extremely naïve. McConnell’s – and Trump’s – willingness to renege on prior promises when political gains are at hand is well-known.
For the right, another Supreme Court seat is viewed as the way to solidify and strengthen a conservative majority for a generation, moving the current 5-4 split to a more comfortable 6-3 and allowing them to occasionally lose one of the conservative justices in a key case and still win overall. Democrats, however, have tried to argue that McConnell should be held to his aggressive stance of no Supreme Court justice in an election year.
As Republicans move with alacrity to nominate and confirm a new justice, many have wondered what possible procedural avenues might be available to the Democrats to stop or at least slow down the runaway train. I would personally support such efforts, but unfortunately, there are no truly promising paths.
The Required Margin
Most certainly, there is no possible way to engineer a threshold requirement of a 60-vote confirmation. Senator McConnell eliminated the supermajority filibuster with respect to Supreme Court nominees in 2017 to ease Justice Neil Gorsuch’s ascendance to the bench, and the Senate Democrats ended the practice for lower court nominees in 2013 after unprecedented obstruction by Republicans had prevented confirmation of a record number of Obama’s judicial appointments. This means that McConnell needs only 50 votes and of course he has 53 Republicans in his caucus, with Vice President Pence very ready to break a tie should three GOP senators break ranks.
There is a slim possibility of getting the requisite number of four Republican Senators to side with the Democrats. So far, there are two on the record. For example, Senator Susan Collins of Maine stated, “In fairness to the American people, who will either be re-electing the president or selecting a new one, the decision on a lifetime appointment to the Supreme Court should be made by the president who is elected on Nov. 3.” By contrast, Senator Lisa Murkowski of Alaska has only asserted that no vote should take place before the election. “For weeks, I have stated that I would not support taking up a potential Supreme Court vacancy this close to the election,” said the senator. “Sadly, what was then a hypothetical is now our reality, but my position has not changed.” Even assuming her weaker statement could be read to mean that the newly elected president should choose the nominee, no other Republican Senator has come forward to stand with them.
It certainly is possible that McConnell could push for a pre-election vote, wishing to show his impact on the U.S. Courts to his conservative voters and perhaps would set Collins free to vote no, if that were seen as helpful to her re-election chances. He may also simply not want to miss the chance to install the sixth conservative justice when he has the clear opening to do so. Graham’s comments on Monday night point in this direction too. “We’ve got the votes to confirm Justice Ginsburg’s replacement before the election, we’re going to move forward in the committee, we’re going to report the nomination out of the committee to the floor of the United States Senate so we can vote before the election,” he told Fox News.
Nevertheless, it remains likely that McConnell will aim to hold the final vote after the election. That path avoids forcing any vulnerable Republicans up for election in blue or purple states to take a tough vote (such as Cory Gardner in Colorado) and to get stuck in DC for and away from the campaign trail (or what amounts to one during a pandemic). McConnell can instead organize a public show for the GOP base of hearings that illuminate the future of a court with an even more solid conservative majority, with an eye to revving up the religious right or Cuban Americans in Florida – or both. McConnell has asked his caucus to keep quiet in order to allow them to milk the opportunities and hedge their bets. “This is not the time to prematurely lock yourselves into a position you may later regret,” said McConnell immediately after hearing of Justice Ginsburg’s death. “I urge you all to be cautious and keep your powder dry until we return to Washington.”
Political Climate in the Lame Duck
Although the composition of the lame duck Congress generally will remain the same as before the election – since new members will not be sworn in until January 2021, the numbers could grow slightly worse for the Republicans if current Senator Martha McSally loses her race to Mark Kelly. Since McSally was appointed and the race is a special election, if he wins, Kelly could be sworn in by November 30, altering the balance of the Senate to 52-48. There’s also a possible scenario where Republicans like Collins who might have lost a reelection bid would feel they could vote their conscience. Her decision may turn on such thinking – or on her post-Senate job prospects. Would it be better for her to have voted aye or nay? For other Republicans, a nay is unlikely no matter how their election turns out because current senators like Gardner and McSally probably would look more to K Street Republican lobby shops for a payout than to the more liberal perches that might attract the Maine senator. .
But is anything to be done? Sadly not much. It certainly is possible that McConnell could push for a pre-election vote based on a different calculus but that doesn’t change the overall analysis.
The Senate Procedures
The first part of the confirmation process involves the Senate Judiciary Committee, which will review the record and hold hearings on the nomination. Prior to sending the name to the committee, lawyers in the White House Counsel’s office will work with potential nominees to fill out background vetting forms for the committee and to examine their taxes and other personal documents, and the FBI will do its own investigation. From 1975 to the present, the average time for a Supreme Court nominee to move from nomination to confirmation is 67 days and the median is 71 days. Because several of the top candidates were recently successfully vetted for lower federal court appointments, the Republicans will move this part of the process quite quickly.
And the committee will also move quickly because Senate Judiciary Committee chairman, Senator Lindsey Graham of South Carolina, is in a competitive race of his own, a first for him in the conservative state and hearings would allow him to flaunt his bona fides for the GOP base. Recently, tweeting his determination to assist the president “in any effort to move forward,” he showed no compunctions abandoning his 2016 promise not to entertain such a nomination. Said Graham in video recorded remarks to Senate colleagues, “I want you to use my words against me. If there’s a Republican president in 2016 and a vacancy occurs in the last year of the first term, you can say Lindsey Graham said let’s let the next president, whoever it might be, make that nomination.” Trust his word, and I have a bridge in Brooklyn for sale if you’re interested.
Although the average time from nomination to hearing since 1975 has been approximately 40 days, while the median has been 42 days, we can expect Graham to hold hearings well before that time has elapsed, once again based on the argument that the nominees have recently been considered by the committee for lower court slots. And it bears remembering that there is no requirement to hold a hearing at all and so this part of the process could be eliminated or truncated if the GOP sees fit.
Preventing a Quorum in Committee: A Dead End
Once they move to a vote in committee, the existing rules provide the numbers required for a quorum:
Seven Members of the Committee, actually present, shall constitute a quorum for the purpose of discussing business. Nine Members of the Committee, including at least two Members of the minority, shall constitute a quorum for the purpose of transacting business. No bill, matter, or nomination shall be ordered reported from the Committee, however, unless a majority of the Committee is actually present at the time such action is taken and a majority of those present support the action taken.
But lest you think this gives Democrats a sure fire way to block this nomination, Senate Judiciary Committee rules are easily “reinterpreted” by the Chair, who would simply eliminate the minority participation as a requirement for a quorum and say that the third sentence supersedes the second.
Indeed, Graham has already done this. In a 2019 letter, Senator Diane Feinstein attempted to persuade him not to change quorum rules by fiat with regard to legislation dealing with immigration. She wrote:
Judiciary Committee rules require the Committee to honor any Member’s request to have a bill held over for one week or until the next meeting of the Committee, whichever comes later. [Senate Judiciary Committee Rule I (3)]. In addition, the Judiciary Committee rules mandate that ‘Nine Members of the Committee, including at least two Members of the minority, shall constitute a quorum for purpose of transacting business.’ [Senate Judiciary Committee Rule III (1)] This means at least seven Senators from the majority and two Senators from the minority must be present to constitute a quorum to hold over a bill. As you know, there was insufficient attendance to meet this rule and, as such, the Committee was not able to transact any business and S. 1494 was not held over at yesterday’s executive business meeting. Notwithstanding these rules, you announced that at next week’s executive business meeting, ‘we’ll take this up Thursday, next week. We’ll make a motion to change the rules, deem this bill held over, and we are going to vote.’
And that is what will happen in case the Democrats try to defeat quorum in the committee. It’s possible Democrats might challenge Graham’s sleight of hand by going to the Senate Parliamentarian to argue that his interpretations or changes to the rules are out of order. Even were the Parliamentarian to deny a rule change, Graham would simply turn to McConnell, who has another trick up his sleeve – simply to hold a full Senate vote to overturn the Parliamentarian, as he did with the filibuster for Supreme Court.
Closure Vote: A Few Days Delay
Once the nominee is voted out of committee, unfortunately for the Democrats, the options don’t improve. A nomination, after coming out of committee, gets placed on the Senate’s Executive Calendar and can be called up by McConnell shortly thereafter. Bringing it up for debate is a non-debatable motion, meaning it is not subject to unanimous consent. Although there is no supermajority requirement, the cloture petition still governs the process for consideration of Supreme Court nominations. While Democrats could offer a motion to postpone or use a couple of other procedural tools, the most they could gain is a couple of days delay. McConnell would simply file cloture on the nomination, which after two days would come to a vote and then allow for 30 hours of debate followed by a vote on the nomination. In all, it gets a few days, but not more than that.
In legislative business, Democrats have more options to slow the process through guerrilla strategies to make the process more complicated for the GOP. The Senate is a body that generally operates on unanimous consent for all of its business – that is, the objection of a single Senator to a routine matter of business such as the calling of the roll or to waive the reading of the text of a bill or resolution could require the filing of cloture and a cloture vote, which takes several days to resolve. As Michael Waldman, president of the Brennan Center for Justice at NYU School of Law, told Newsweek in 2019, “Democrats have limited tools but the key is a willingness to use what they’ve got. They can demand quorum calls, they can slow down votes and they can make a big public issue of it. That’s the one thing they’ve never done before.” This is not true for the Executive Calendar since the Republican Leader does not need to adjourn the Senate to advance the calendar as he does for legislative business; thus the Senate does not adjourn, but only goes into recess for the night, and upon return, it’s the same day on the calendar and there’s no need to take up the journal, call the roll, or do any of the other routine business that allows for procedural delay tactics.
Preventing a Quorum in Full Senate: Another Dead End
But what about a quorum in the Senate? Can Democrats deny a quorum? Sorry to be the bearer of bad news for such aspirations but here too the answer is no. Under Article I, section 5 of the Constitution, a quorum consists of a majority of the Senate or 51 senators. While Collins and Murkowski may not wish a vote to take place before a new president is inaugurated or at least until after the election, it would be foolhardy to think they (plus a third Republican) would help Democrats thwart a vote by refusing to show up for a quorum.
All Eyes on the Election
So what’s left? I think it is exactly what most of us were already fixated on – the election. If Democrats take back the Senate and the White House, they will begin to weigh options for reforming the Court and addressing how far to the right it has moved, and how much it has imperiled our democracy. Adding more justices to the Court, pushing 18-year term limits (perhaps even within the bounds of the constitution), applying ethics and transparency rules, all this will be on the table.
Off the Wall Options
Over the weekend, House Speaker Nancy Pelosi appeared on ABC’s “This Week,” and alluded to other tactics such as another impeachment inquiry to thwart the nomination. How this would work is unclear to me, but when asked about the impeachment option, Pelosi insisted, “We have our options. We have arrows in our quiver that I’m not about to discuss right now but the fact is we have a big challenge in our country. … When we weigh the equities of protecting our democracy requires us to use every arrow in our quiver.”
But what is crystal clear is that Joe Biden is likely to win the popular vote in this election, making that six out of the last seven presidential votes from 1992-2020. Nonetheless, Republicans have been able to appoint 14 of the last 18 justices and they are now shooting for 15 out of 19. If that isn’t a challenge to a democratic system and legitimacy of the Court, it’s hard to imagine what one could be.
Photo: Senate Judiciary Committee Chairman Sen. Lindsey Graham (R-SC) speaks with Sen. Patrick Leahy (D-VT) during a Senate Judiciary Committee hearing on August 5, 2020 (Carolyn Kaster-Pool/Getty Images)
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