The temperature plummeted Friday night in Washington, along with the mood of many Democrats, as they heard that Justice Ruth Bader Ginsburg had passed away. In the fight to fill her seat, the stakes are enormous and Democrats need a plan — fast. Their options in the weeks ahead are limited, but Republicans face a slim margin for error.
There are steps Democrats can take to apply maximum pressure, brand the process as the illegitimate farce it is and lay the groundwork for desperately needed reform that can reverse the damage early in 2021 if Democrats win in November.
The all-important question is, does the majority leader, Senator Mitch McConnell, have the votes? Nothing matters more to him than the courts, so the safe bet is that he will find them. The gauntlet of hypocrisy Republican senators will have to run will be brutal and will likely hurt those in close re-election races. But let’s assume that a nominee moves forward.
There is no silver bullet available to Chuck Schumer, the Democratic Senate minority leader, to block the nominee. Distraught Democrats should understand that senators’ options are limited, but Democratic senators should understand the depth of voters’ desire to see their senators do everything possible to stop Mr. Trump from replacing R.B.G. This is an illegitimate process, and that is how Democrats should approach it. A core function of the Senate is to “advise and consent” on federal court nominees. Jamming a Supreme Court nominee through in direct contradiction of Republican senators’ pledges not to do so, with votes already being cast in the election, will be a clear abdication of any reasonable claim to the institution’s constitutional responsibility.
There are a range of tools available to Democrats to apply constant pressure. The Senate operates on what are called “unanimous consent” agreements, or U.C.s — pacts that set the daily schedule and the terms of conduct for all business. As the name suggests, every senator has to agree to a U.C. If a single senator objects, the U.C. is blocked. Democrats can bring the business of the Senate to a halt by systematically denying U.C. agreements. This simply requires stationing one senator on the floor at all times — senators can rotate every few hours, they just need to be physically present on the floor to say, “I object,” anytime Republicans try to pass a U.C.
Denying U.C.s will gum up the works in countless ways, one of which will be to deny committees the ability to meet more than two hours after the Senate convenes. This applies to the Judiciary Committee, where any confirmation hearings would be held. Republicans will still be able to schedule them, but it will make the process arduous and abnormal.
Absent U.C.s, the Senate needs a quorum of 51 senators to be present to conduct business. Senate Democrats should force Republicans to produce quorums on their own. Republicans control 53 seats, but bringing 51 senators to the floor every time they need to conduct business is a major challenge. Notably, Republicans have more incumbent senators up for re-election than Democrats do, and every day they have to spend in Washington is a lost day of campaigning. It takes only one senator to do this: By noting the absence of a quorum, a Democratic senator can put the Senate into a state of suspended animation called a “quorum call” until 51 senators arrive on the floor.
Democrats can also boycott the confirmation hearings. The hearings are unlikely to influence the outcome. If the hearings for Brett Kavanaugh did not change any votes, neither will these hearings. Attending confers legitimacy, and refusing to attend will send a powerful statement that they deem the process and the nominee illegitimate.
Together, these tactics will hang an asterisk around President Trump’s nominee. Democratic senators should keep that if they participate in the process, even aggressively, it will be recorded as a “contentious” confirmation process, a common occurrence. Boycotting the process and disrupting Senate business, on the other hand, will brand it as fundamentally different from anything that has come before.
This brings us to the most important step: Democrats should commit to the structural reforms necessary to undo the damage Republicans have wrought. Republicans were able to block Judge Merrick Garland and install a conservative majority on the Supreme Court despite representing less than half of the population. The Senate overrepresents white conservatives, while minority voters are more underrepresented than at any time since 1870. A white conservative minority imposing its will on a diverse majority — in part through federal judges serving lifetime appointments — is a fundamentally unhealthy dynamic for our democracy.
If Democrats win the White House and the Senate in November, they can pass reforms to rebalance our democracy through simple majority votes. The only thing standing in the way will be the filibuster — a procedural mutation that was not a part of the original Senate and that has been manipulated in recent decades to transform the Senate from the framers’ vision of a majority-rule institution into one where most business requires 60 votes (or a “supermajority”) to pass. There are many good reasons to get rid of the filibuster, but Republicans jamming through a nominee should motivate any hesitant Democrats to commit to eliminating it if they take back power.
Without the filibuster, reforms can be passed by simple majority votes, as the framers intended. Democrats should commit to reforming the Supreme Court: They can add seats to the court; apply age or term limits; or pass any of a range of credible proposals. Congress has the prerogative to change the court, including its size, which it has done six times since the founding.
Democrats should also reform the Senate so it better represents the nation. They can start by inviting territories bound by federal law but lacking voting representation in Congress to become states. The District of Columbia has roughly a similar or greater population as Wyoming or North Dakota, while Puerto Rico has more people than 20 states. Both deserve to become states if they so choose.
Committing to these changes now will enable Democrats to move quickly if they take back power.
Some commentators have floated the idea of shutting down the government (funding runs out on Sept. 30). But this would backfire politically, and the Senate can confirm a nominee even if the government is shut down. It’s a bad idea.
This is a dark time for Democrats, but it has the potential to be clarifying. The Senate is awash in myths and misconceptions about norms and traditions, most of which were invented to serve narrow political interests. Republicans’ naked hypocrisy will reveal that much of what senators assure us is grand Senate tradition is just hardball politics.
Democrats’ options before the election may indeed be limited. But if they win, the only restraints will be their own ambition and will.
Adam Jentleson, a progressive strategist and former deputy chief of staff to Senator Harry Reid of Nevada, is the author of the forthcoming book “Kill Switch: The Rise of the Modern Senate and the Crippling of American Democracy.”
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