President Donald Trump has nominated Judge Amy Coney Barrett to replace the late Ruth Bader Ginsburg on the Supreme Court, setting up a ferocious confirmation battle as votes are already being cast for the November 3 election.
Barrett, who was previously named to the 7th Circuit Court of Appeals by Trump, is an outspoken social conservative, broadly hostile to abortion rights, and a strong supporter of corporate rights. Her confirmation would give conservatives a 6-3 majority on the Court, making Justice Brett Kavanaugh the swing vote, and would be the culmination of a decadeslong strategy on the right to marry the pro-corporate, anti-worker, and anti-consumer movement with social conservatism.
Amy Coney Barrett wrote the 7th Circuit opinion last month siding with Grubhub to say drivers cannot press for minimum wage and overtime pay as a class action, they must use arbitration agreements, a decision that limits gig workers across the country. https://t.co/WG5DOaQk9g— Lee Fang (@lhfang) September 25, 2020
Trump had been urged by his political advisers to pick Judge Barbara Lagoa, who, they argued, as a Cuban American, could help tip the balance of the presidential election in Florida and perhaps elsewhere. But Trump, as he has done repeatedly through his time as president, retreated to the embrace of social conservatives.
Senate Minority Leader Chuck Schumer faces increasing pressure from Democrats around the country to use every tool at his disposal to oppose the Republican effort to push through a Supreme Court nominee before the election, one question has bedeviled activists: What exactly is possible?
A memo circulating on Capitol Hill, put together by several people with knowledge of congressional procedure and obtained by The Intercept, lays out some of the options that could be available to Schumer even in the face of a determined Majority Leader Mitch McConnell. Senators looking to obstruct in the Senate have a dizzying array of opportunities, but a majority leader with 50 votes, plus a tie-breaking vice president, also has an extraordinary amount of power in the upper chamber. Elements of the memo were first published earlier Thursday by the Daily Poster.
Sen. Judd Gregg, R-N.H., put together a similar document as Republicans were working to block the Affordable Care Act in 2009 and 2010.
Dozens of Indivisible chapters recently sent Schumer a letter demanding he do everything in his power to block McConnell and President Donald Trump from filling the seat left vacant by Ruth Bader Ginsburg’s death last week before a new president is sworn in. On Sunday evening, Rep. Alexandria Ocasio-Cortez, appearing alongside Schumer at a press conference, urged him to do the same.
Trump has pledged to nominate a new justice by Saturday, and McConnell has vowed to move quickly forward on the nomination.
The memo does not claim that victory would be guaranteed by engaging in these dilatory tactics, but lays out why the scenario is different than the confirmations of Neil Gorsuch or Brett Kavanaugh, both of which came long before the presidential election. The memo:
Re: Safeguarding the Court
Democrats must act to delay action by Leader McConnell to fill Justice Ginsburg’s Supreme Court seat. Denying action before the election could markedly increase the probability that the results of the election would change the vote in the Senate and thereby allow for the seating of a more progressive Justice. Failing that, moving forward with confirmation during a lame duck session, if consent of the governed had been denied, would buttress the case for structural Court reform.
Moreover, much of the broad electorate will want to see Congressional Democrats fighting to protect the Court and their Constitutional rights. Mere capitulation to what Washington insiders see as the inevitable will be viewed by many as abandonment of the Democratic base and could undermine enthusiasm.
At least two contextual considerations make the current circumstance more favorable to the use of dilatory tactics than were the Gorsuch and Kavanaugh confirmations, both of which took place during the 115th Congress: 1) The electorate might vote to change control of the Senate and/or the White House in a matter of weeks and 2) Democrats control the House of Representatives, which can play a part in compelling certain action in the Senate.
Engaging in such dilatory tactics would also likely force McConnell to keep the entire Republican Conference in the vicinity of the Senate, in order to maintain a quorum and to win various votes. This might become increasingly untenable because up to a dozen sitting Republicans are defending their seats in close races and will want to return home to campaign — including to participate in debates and other events they will be loath to miss.
As a threshold matter, the Congressional Democrats must enter a war-room posture and convene a group of the people most knowledgeable of Senate (and House) procedure who can work together and be mutually generative of relevant tactical ideas.
Suggestions contained herein, even if all acted upon in good faith, might not be dispositive of the outcome of the confirmation process — but we have reason to believe that not all potential options have been thoroughly explored.
Actions Congressional Democrats should consider include the following — but what follows is far from exhaustive. We do not purport to have considered every possibility, and this document intentionally omits discussion of certain creative tactics that rely upon the element of surprise.
Exercising Rights To Delay Senate Action Generally
Speaking at Length — In the absence of a unanimous consent agreement governing time to debate or cloture, a Senator who gets recognized to speak can speak at length.
Objecting to Routine Consent Agreements — Any Senator may object to routine unanimous consent agreements, such as those to adjourn, to recess, to approve the Journal, or to dispense with the Morning Hour. Forcing roll-call votes on routine motions to adjourn or recess would require Senators to come to the Capitol and also prevent the Senate from taking other action during the time that it would take for Senators to come to vote.
New Legislative Day — If the Senate adjourns without a unanimous consent agreement providing for the handling of routine business at the beginning of a new legislative day, a new legislative day starts with the morning hour, a 2-hour period with a number of required procedures. As part of the morning hour, any Senator could make a non-debatable motion to proceed to an item on the Senate calendar.
Objecting to Lifting Quorum Calls — Any Senator can object to unanimous consent to lifting a quorum call, forcing a recorded vote that would require Senators to come to the Capitol and also prevent the Senate from taking other action during the time it takes for Senators to come to vote.
Motions to Adjourn and Recess — Any Senator can move to adjourn, to adjourn to a day certain, or to take a recess. All of these motions take precedence over a motion to proceed to the consideration of a nomination. Senators could make a series of motions of this sort to force roll-call votes.
Layover Requirements — Senators can raise points of order if measures have not lain over sufficiently under Rule XIV or XVII.
Raising Points of Order — Any Senator who gets recognized by the Presiding Officer can raise a point of order making a procedural objection. Once the Presiding Officer rules, a Senator can appeal the ruling of the Chair, and Senators can demand a roll-call vote. One could imagine an extremely large number of procedural questions on which to vote.
Filing Cloture — If the Senate is not governed by a unanimous consent agreement or post cloture, a Senator who got recognized could move to proceed to a measure or series of measures and file cloture on the motion(s) to proceed. Two days later, the Senate would be required to vote on the cloture motion(s). The number of these motions is limited only by the number of items on the calendar.
Fast-Track Vehicles — Several fast-track statutes, including the Congressional Budget Act, the Congressional Review Act, the War Powers Act, and the Arms Export Control Act, give any Senator the right to move to proceed to a vehicle and force a roll-call vote and sometimes a period of debate. For example, any Senator could submit a concurrent resolution on the budget, and by precedent, if action has not yet been taken on a budget resolution for the coming fiscal year, then the resolution would be immediately placed on the calendar. Once on the calendar, any Senator could move to proceed to the resolution, forcing a roll-call vote on the motion to proceed. Meanwhile, resolutions of disapproval under the CRA can be petitioned out of committee with 30 signatures after 20 calendar days. Such measures could be filed en masse now.
Utilizing Rule XIV — Any Senator can have any legislative measure placed on the calendar in two legislative days under Rule XIV. Leader Schumer could ask every Democratic Senator to introduce bills on their favorite subjects en masse and seek to put them on the calendar via rule XIV. Once they were on the calendar two legislative days later, if Schumer could get the floor, he could move to proceed to each in turn, file cloture, withdraw his motion to proceed, move to another, file cloture, withdraw his motion to proceed, and continue to repeat, stacking up an almost endless series of votes on motions to invoke cloture on motions to proceed to Democratic priorities, until the Majority Leader shut the Senate down.
To prevent this strategy, the Majority Leader would have to keep the Senate locked down post cloture at all times and prevent the Democratic Leader from getting recognition, or continue to recess the Senate to prevent there ever being another legislative day. If the Majority Leader did the latter, the Democratic leader could still file serial motions to proceed to bills already on the calendar, so long as he could gain recognition to make the motions. This strategy requires there being an opportunity for motions to be made.
House Measures Requiring Senate Action
Impeachment — If the House of Representatives exercised its impeachment power, then the rules of the Senate require the Senate to immediately address that matter.
Amendments Between Houses — If the House of Representatives passed amendments to Senate-passed bills now pending in the House and sent those over to the Senate, those messages between Houses would be privileged in the Senate. Thus, in the absence of cloture or a unanimous consent agreement governing the Senate floor, a Senator could ask that such a message be laid before the Senate and make motions in connection with the message that would require immediate roll-call votes or offer a motion to concur (or concur with an amendment) and file cloture, once again forcing a roll-call vote after two days.
Short-Term Funding — The House of Representatives could insist on very short-term funding measures until the Leadership of both Houses came to agreement on proceedings for the balance of the year. Short-term funding measures would then require more-frequent roll-call votes.
War Powers Resolutions — Generally, within a certain number of days, the Senate has to take up WPRs or any Senator can move to proceed.
There are likely additional measures available that, if passed by the House, would demand action in the Senate.
Exercising Rights in the Judiciary Committee
Time for Review and Hearing — The Judiciary Committee customarily takes time to review the record of Supreme Court nominees. Democrats should demand that the Committee take this time before a hearing commences.
Objecting to Committees Meeting — Any Senator can object to unanimous consent for committees to meet more than two hours after the Senate convenes on a day in which the Senate is in session.
Full Hearings — Democratic Members of the Judiciary Committee could try to continue the proceedings of any hearing that the Chairman calls.
Hold Over Committee Action — Under Judiciary Committee rule I, paragraph 3, “At the request of any member . . . a . . . nomination on the agenda of the Committee may be held over until the next meeting of the Committee or for one week, whichever occurs later.” A Democratic Senator on the Judiciary Committee should demand that the nomination be held over for the week.
Denying a Quorum — Republicans need to produce the presence of a quorum of Judiciary Committee Senators to report out the nomination. Democrats might choose not to help produce the necessary Senators.
Update: September 26, 2020
This story was updated to reflect the nomination of Amy Coney Barrett.