Monday, October 12, 2020

Sound And Fury

"The hearing to confirm Judge Amy Barrett to the Supreme Court will now begin."

Thus began (after welcoming everyone) Senate Judiciary Committee chairperson Lindsey Graham on Monday morning. More conventionally, Graham would have announced that the hearing to consider the nomination of Judge Barrett to the Supreme Court would begin.

 But Graham has little to fear. Indivisible, the group formed in response to the election of Donald Trump to the presidency, has outlined tactics which the Democratic minority in the Senate can take to "slow downthe Amy Coney Barrett nomination. " While acknowledging "there is no single silver bullet," Indivisible notes (emphasis theirs) that the longer Democrats stall, "the more time we get to pressure Senate Republicans, who are in control of the timeline, and demand they REFUSE to consider any Supreme Court justice until the next president is inaugurated."

Slowing Down Senate Proceedings

While Democrats are unable to filibuster Supreme Court nominees, they do have a variety of tools they can use to slow down proceedings in both committee and on the floor. They include:

Withholding Consent: The Senate works on unanimous consent, meaning they assume procedures that require a vote are passed with unanimous consent. Any Senator can object and force a vote. You can read more about withholding consent in our explainer.

Quorum Roll Calls: The Senate requires a quorum to conduct business. It is assumed that there is a quorum but Democratic Senators can object and force a roll call.

Raising Points of Order: Senators can object at any time when they feel a rule has been violated. Once the Presiding Officer passes judgement on if a rule has been breached, Senators can object to the ruling and force a vote. Democratic Senators could force votes on any number of rules to delay proceedings.

Forcing the Senate to take up other business

Under Senate norms, the majority party has complete control of the agenda. However, there are certain measures that could require the Senate to take action. Through these mechanisms, Democrats could force Senate Republicans to temporarily pause proceedings on the nomination and focus on the following:

 Force a cloture vote: Technically, any Senator can force a vote on a bill that has been introduced but don’t because it could grind Senate business to a halt. Democratic Senators can use this rule to delay the nomination proceedings and force votes. Senator Schumer used this tactic to force a vote on a bill to protect people with pre-existing conditions if the Supreme Court strikes down the Affordable Care Act.

Short-term funding: The House could insist on passing further budget-related measures which the Senate would need to vote on.

War Powers Resolutions: The Senate generally has to take up WPRs within a certain number of days or any senator, including the minority party, can move to proceed.

Indivisible recommends voters encourage their (Democratic) senators to slow down the nomination or their (Republican) senators to reconsider filling Justice Ginsburg's seat.

But it is fairly clear that Democrats are uninterested.  Democrats possess the vain hope that people will rise up and discourage Republicans from voting to move Barrett's nomination primarily because she could prove instrumental in striking down the pre-existing conditions clause in the Affordable Care Act, secondarily because of her hostility to reproductive rights. In the video below, Judiciary Committee member Amy Klobuchar, joined by other Democratic senators, gives the game away, arguing

It's probably not going to be some brilliant cross-examination that is going to change the trajectory of this nomination. But there is something that will. And that is the people of this country. That is them, voting.

According to Klobuchar (and Connecticut senator Blumenthal at the same news conference), the answer to Justice Amy Coney Barrett is what we already knew to do: vote.

This is not leadership. It's an abrogation of responsibility. Senate Democrats know they have a good chance to slow down the process sufficiently to prevent the full chamber from voting on the nomination. Prospects are not good they will even try.


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