by E. O. Hutchinson
The universal consensus on Trump and Senate Majority Leader Mitch McConnell’s speed rush to fill Ruth Bader Ginsburg’s seat is that Senate Democrats can do nothing to stop it. This is dead wrong. The operative word here to muck up Trump and McConnell’s confirmation scheme is time, time and more time. Time, they don’t have much of.
Let’s start with the Senate Judiciary Committee hearings and then work back. The 10 Senate Democrats on the committee can trot out the Senate committee rules book and cite the section that says the committee must have nine members and two members of the minority party i.e. Democrats to make a quorum to “transact business.” Senate Democrats on the committee can invoke the rule and stay away at least for the start of the hearings.
Yes, the committee can meet anyway and bend the rules to justify the hearings and then threaten to move the nomination to a full Senate vote. But just the act of staying away at least for the start of the hearings and maybe longer will be more than symbolism. It will allow the Senate Democrats to dramatically make the public case against the nominee, to continue to blast McConnell’s hypocrisy in trying to ram through the nomination, and to hammer away at the political danger of this precedent.
But before it goes to committee, there’s much more that the Democrats can do. They can:
• Demand a full FBI background check of the nominee, demand the right to individually review all documents pertaining to the nominee, and that they be officially released for public scrutiny. In addition, they can probe the prospective justice’s background, writings, and paperwork.
• Individual Senators can request a meeting with the nominee—That is all 47 Democrats—to interview and discuss any aspect of the nominee’s judicial views and qualifications they choose.
• Demand that the Judiciary committee meet for longer than two hours after the Senate convenes. Any Democrat can do this. This would force longer committee meetings. Also, any senator may ask for consideration of the paperwork on a nominee to be deferred one week.
• Delay hearings so members of the panel can review all documents related to the confirmation.
• Once out of committee, launch a “talking filibuster.” Hold the Senate floor and talk against the confirmation endlessly. Even, if as is almost certain, McConnell slaps cloture on the debate time, they still have up to 30 hours to debate the confirmation,
• Call for a quorum of the full Senate and insist that the Senate clerk confirm that all 100 senators are present and tabulate those who aren’t.
• Stage a Blue flu sick in and away from the Senate chamber. McConnell would instruct the Senate sergeant-at-arms to force the senators to come to show up, cast votes, or note their presence for a quorum. Without a quorum, the Senate would be forced to adjourn, to recess, or to continue to try and force the Democrats to show up.
These delay tactics involve making creative use of the Senate’s arcane and voluminous rules, and not just blustery speeches. The GOP has made masterful use of those rules when it suited it to block or stall Obama’s nomination of Merrick Garland to the SCOTUS and any other of his administration’s appointment during the years when it was the minority party in the Senate.
McConnell will relentlessly and ruthlessly cajole, browbeat, and manipulate the Senate rules to parry any one or more of these tactics that the Democrats could use. However, all this will take time, time and more time. Time in which the Democrats can continue to mobilize and energize millions of Americans about the shame, hypocrisy and danger of Trump and McConnell’s little stunt to pack the court with hard right ideologues.
Equally important, it will also prove that Democrats can do more than talk, shout, rail, and complain about the unfairness of the court packing scheme. That they are willing and able to take concrete action to try and torpedo the scheme.
Two Senate republicans have done the right thing and said no vote on a nominee should be taken until after the election. Now, in a perfect and fair world, all the GOP Senators would say this and none of this would be necessary. Trump and McConnell would observe the rule of law, precedent, convention and certainly the wishes of Ginsburg. That is that no nomination and confirmation be made and voted on until after the presidential election and Americans know for sure who will sit in the White House in January 2021.
The X factor in all of this is not the tactics the Democrats have at their disposal but the Democrats themselves. The GOP gave Democrats a template on how to use every Senate ploy to hector, harass, and stall Trump’s SCOTUS nominee. They did not simply make defiant sounding speeches. The fight over Ginsburg’s seat and legacy could be the Senate Democrat’s shining moment to show that contrary to opinion, there’s a lot they can do too muck up Trump’s SCOTUS bum rush.