All Your Wildest SCOTUS-Blocking Fantasies, Crushed
The death of Ruth Bader Ginsburg has plunged the 2020 presidential campaign into turmoil. An election already defined by a historic pandemic and a generational conversation about race in the United States now has the added complication of the battle over the Supreme Court seat vacated by Ginsburg’s death.
With six weeks before the election, Senate Republicans have pledged to fill the vacancy as quickly as possible. This stands in stark contrast to Senate Majority Leader Mitch McConnell’s blockade of Merrick Garland’s nomination to the seat opened up by Antonin Scalia’s death in February 2016. Then, Republicans insisted that no Supreme Court nominee could be voted on until after the November election.
While Republicans have insisted the two scenarios are different, Democrats have reacted in outrage at what they perceive as GOP hypocrisy about the court and have insisted they will do everything possible to block a confirmation before November 3.
So can Democrats block a replacement to Ginsburg before the election?
Almost certainly not. When it comes to judicial nominations, the Senate is fundamentally a majoritarian institution and there is a majority to confirm a replacement to Ginsburg. With Harry Reid invoking the so-called “nuclear option” for lower court nominations in 2013 and followed by Mitch McConnell doing so for Supreme Court nominations in 2017, all that is needed to confirm a judge is a simple majority. Right now Democrats only control 47 seats in the Senate. Although two Republicans, Susan Collins of Maine and Lisa Murkowski of Alaska, have pledged to block a pre-election vote on a Supreme Court nominee, Democrats still need two more Republicans to object. (Vice President Mike Pence would cast a tie-breaking vote if there was a 50–50 tie.) And, while the Senate has its own formal procedures for Supreme Court nominations, the timeline still allows for every step in nomination to be followed and a final vote around Halloween, days before Election Day. In modern times, the fastest that any justice has been confirmed without an unopposed nomination was Ginsburg. She was confirmed by a vote of 96–3 in a process that lasted 42 days.
Have Senate Democrats done anything so far?
Senate Democrats can try to slow down the process, make things as painful as possible, and attempt to recast the debate on the nomination. Democrats have already taken one step toward this by invoking the “two-hour rule” on Tuesday. This forbids Senate committees from meeting for more than two hours after the Senate gavels into session or after 2 p.m., whichever comes first, without unanimous consent. This, in theory, would force Judiciary Committee hearings on the nominee to take place early in the morning and face being truncated.
However, the two-hour rule can be avoided by the Senate going into recess during the committee hearing process. The rule is an irritant more than an impediment.
So does this play out just like the Kavanaugh hearing then?
In many ways it does, save that Democrats have even fewer cards to play now. In 2018, Republicans only held a narrow 11–10 majority on the Senate Judiciary Committee and that majority included Jeff Flake of Arizona, an ardent Trump critic. Flake served as a swing vote and was pivotal in the delay in the hearing after Kavanaugh was accused of sexual misconduct.
However, the Arizona Republican did not seek reelection and the 2018 midterms have led to Republicans now having a 12–10 majority on the committee and the three Republicans who have been added to the committee since the midterms — Marsha Blackburn of Tennessee, Joni Ernst of Iowa, and Josh Hawley of Missouri — are all Trump allies. The one difference though is that Democrats did not make the argument that the very nomination of Kavanaugh was illegitimate and tainted the entire process. That has been a defining thread for the Ginsburg vacancy, coming as it does on the eve of the 2020 election and in the wake of the Garland precedent.
So can they boycott the process if it is illegitimate?
They can and some liberal activists have suggested this. In an op-ed for the New York Times, Adam Jentleson, a longtime aide to former Senate Majority Leader and Democrat Harry Reid, argued for this approach. In his view, “attending confers legitimacy, and refusing to attend will send a powerful statement that they deem the process and the nominee illegitimate.”
As Marty Paone, the longtime Democratic Senate secretary and former Obama Administration liaison to the upper chamber explained it, “the Mensheviks made that mistake in 1917 and the Bolsheviks took over.” He pointed out that after the Kavanaugh confirmation hearings, Democrats picked up 41 seats in the House and only suffered a net loss of two Senate seats on a map where they were playing defense in a number of deep red states.
So are there other options?
One argument that Democrats have made is that any successful effort to confirm a Supreme Court nominee would mean immediate aggressive steps if they retake the majority in 2021. A program has been outlined for Democrats to end the filibuster, add seats to the Supreme Court, and make Puerto Rico and Washington, D.C., states to fundamentally reshape the balance of power. However, this threat is unlikely to sway Republicans who see these as long-cherished goals of progressives and believe Democrats would move forward on these no matter what.
Another argument made by some Democrats is that any nomination could be delayed by a rushed House impeachment of Attorney General Bill Barr, Trump, or another reviled Republican. In their view, this would force the Senate to hold a trial and not consider a Supreme Court nominee. However, all votes in an impeachment trial besides conviction require a simple majority and the Senate could simply put the trial aside, go back and forth between session and a trial, or even just issue a directed verdict without hearing any evidence.
James Wallner, a former Senate Republican aide who currently serves as a senior fellow at the R Street Institute, suggested an unusual alternate approach for Democrats. In his view, Minority Leader Chuck Schumer should follow a counterintuitive strategy and immediately move to discharge the nomination from being considered by the Judiciary Committee to allow for an immediate floor vote. In Wallner’s view, Schumer should advance the argument that there is no time to adequately consider the nominee no matter what happens, so why not get the process done with.
In Wallner’s view, if 51 Republicans call Schumer’s bluff and support an immediate floor vote then it at least gets the presidential election back to focusing on the pandemic. However, if that doesn’t happen, he argues that it gives Democrats the opportunity to “find cracks” in the Republican coalition and put them on the defense by recasting the debate about whether there is a sufficient amount of time for a vote to take place rather than whether the Senate has the authority to confirm a nominee before an election.
So Trump’s nominee is going to be confirmed before the election?
That seems to be the case. As long as the votes are there to do so, the nominee will likely be confirmed. However, in an unprecedented political year, anything could happen and the process can always be cast into turmoil by a bombshell revelation or a late-night Trump tweet.