Democrats face limited options to prevent confirmation of Trump’s Supreme Court pick

There’s one potential deal Democrats could try to make, says George Mason University law professor Ilya Somin.

The idea, which has gained traction among some academics and commentators, is simple: If the Republicans agree not to ram through a nominee, the Democrats would agree not to “pack the court” — meaning, they would scrap their threat to, if they win power, increase the number of Supreme Court justices on the bench to tilt the ideological makeup back to their side.

“In order to make [the deal] work, you only need a relatively small number of key senators on both sides,” Somin said.

As for the likelihood of both sides to agree to such a deal, Vanderbilt University political science professor Bruce Oppenheimer offered a two-word response:

“Dream on.”

Or, as  Charles Jacobs, a political science professor at St. Norbert College in Wisconsin, explained: “The Democrats are holding very weak cards and [Republican Senate majority leader Mitch] McConnell knows it. No reason to make the deal.”

Indeed, as Oppenheimer, Jacobs and other political science experts suggest, that leaves few avenues for the Democrats.

“Their procedural options are very limited,” Oppenheimer said. “They could delay things somewhat, but not stop it.”

The decision by the Republican-controlled Senate to rush through Trump’s nominee has outraged Democrats, still stinging from McConnell’s refusal to allow an Obama Supreme Court appointment in 2016 because, he said, it was an election year. Democrats argue the appointment should be made by whomever wins the upcoming election.

But Republicans hold a 53-47 majority in the Senate chamber and can confirm a justice by a simple majority.

Procedural options

In 2013, then-Democratic Senate majority leader Harry Reid and the Democratic caucus were frustrated that the Republicans were blocking Obama’s picks to the federal judiciary through use of the filibuster, a procedure to delay or prevents a vote on a particular issue from taking place.

Reid decided to use the so-called nuclear option (overriding the need for a supermajority in favour of a simple majority) to scrap the use of the filibuster when it came to court appointees below the Supreme Court.  

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In 2017, with the Republicans in charge of the Senate, McConnell took it a step further and scrapped the filibuster for Supreme Court justices.

That’s how the Democrats find themselves without the most effective procedural weapon to prevent Trump’s Supreme Court nominee from going forward. 

“I think it is a consequence of the action that the Democrats originally took in 2013,” said Richard Arenberg, author of Congressional Procedure: A Practical Guide to the Legislative Process in the U.S. Congress.

While Reid’s move may have been understandable at the time, “it was short-sighted,” Arenberg said. “It was clear that it was a slippery slope.” 

So, procedurally, what are the Democrats left with? There are things they can do to slow down the process at the margins, said Molly E. Reynolds, a senior fellow in governance studies at the Brookings Institution.

They could force repeated roll call votes on the Senate floor on items that are usually dispensed with by unanimous consent without a vote, she said. Or they could deny committees the ability to meet after the Senate has been in session for two hours, under a convoluted “two-hour rule.”

“They may well try some of these things in order to slow down the process and to draw attention to the fact that Republicans are trying to move very quickly,” she said.

Impeachment again?

In an interview with ABC News This Week, House Speaker Nancy Pelosi wouldn’t rule out moving to impeach the president or Attorney General Bill Barr to try and prevent the Senate from voting on Trump’s court pick.

But Reynolds said even if the Democratic-controlled House moved quickly enough to send articles of impeachment over to the Senate, Republicans could dispense with it quickly with a simple majority vote.

McConnell has said the Senate has “more than sufficient time” to vote on the nominee before the election.

But Jacobs cast doubt on such plans.

“A contemporary nomination to the United States Supreme Court takes, give or take, six to 10 weeks to complete,” he said. “If they kind of follow what is typical, it’s highly unlikely this person gets confirmed before the election.”

The process includes a comprehensive FBI background check, time for the Senate judiciary committee to prep for hearings, the hearings themselves, which can last a few days, and the days relegated for debate on the floor.

“If you just sort of plot out all of those processes, it takes a long time,” Jacobs said.

Even if Trump loses the election, he remains on the job until Jan. 20, 2021, and the current Senate remains in place until Jan. 3 — plenty of time to get Trump’s nominee through. 

Yet Arenberg believes the vote will happen before the election.

“The Congress moves very slowly 95  per cent of the time,” Arenberg said. “And when they want to do something quickly and they have the votes, it can happen with amazing speed.“

What next?

It is possible that something controversial emerges from the nominee’s past, which would put more pressure on the time constraints.

“The only thing that could change all of this, as has happened in the past, if something appears in the nominee’s record … such that a sufficient number of Republicans are upset and don’t want to confirm,” Oppenheimer said.

For example, in 1987, Judge Douglas Ginsburg was forced to withdraw his nomination after it was revealed he had smoked marijuana as a college student and Harvard law professor. 

In 2018, allegations of sexual misconduct against Brett Kavanaugh prolonged his nomination process, with an additional hearing held for his accuser, though his nomination was ultimately confirmed.

If the vote to confirm is not held before the election, the Democrats have one hope of derailing Trump’s nomination: If Biden takes the White House, some Republicans might be more inclined to vote with them.

For instance, Maine Republican Senator Susan Collins has already said the appointment of the Supreme Court justice should be made by the president who is elected on Nov. 3. And Republican Alaska Senator Lisa Murkowski appears to be on the fence on the matter. 

“[After the election] it might be hard to hold all Republican senators,” Oppenheimer said.

Which is why Oppenheimer believes McConnell will do what he can to have the vote held before the election.

“I think strategically, they think the risks of doing it after are too great.”