Editor’s Note: First published on Sept. 22, 2020, this article was updated on Oct. 4, 2020 to include scenarios involving absences among senators due to coronavirus.
When hearing the news of Supreme Court Justice Ruth Bader Ginsburg’s passing two weeks ago Friday, many of us paused to grieve and to contemplate her towering legacy. Hundreds gathered immediately to mourn her outside of the Court, lighting candles and comforting each other in this terrible loss. They recounted her many contributions to American jurisprudence from her own arguments in front of the highest court to her opinions, including dissents, that laid out a vision of equal citizenship in America.
Someone who did not pause, however, was Senate Majority Leader Mitch McConnell, who immediately announced that he would work with President Donald Trump to fill her seat. Anyone who might have been surprised at his quick repudiation of his own statement in 2016 (asserting that in a presidential election year, Supreme Court nominees should be held in abeyance because “the voters should decide”) could only be accused of being extremely naïve. McConnell’s – and Trump’s – willingness to renege on or recast prior promises when political gains are in sight is well-known.
But now, with Trump at Walter Reed Hospital and three Republican Senators testing positive for COVID-19, including two members of the Senate Judiciary Committee, many are wondering whether confirming a Supreme Court justice is still possible for the GOP. Unfortunately for those of us who have found this to be an illegitimate and reckless rush to a vote, the answer is most likely yes. It bears remembering that these very Republican Senators have shown little or no compunction about exposing other people to the virus. In order to defeat this nomination, Republican Senators would need to remain in quarantine (or to be truly ill and hospitalized). If they are quarantining, it seems quite clear that they would simply slap on a mask and come to the Senate floor, stay six feet or more from other Senators, and vote or participate in giving the Republicans a quorum. What’s more, McConnell’s timeframe does not anticipate a floor vote until close to Halloween, giving the three plenty of time to come out of their quarantine (should they observe it). The Committee vote would not need to happen much before that – and despite Democratic objections, hearings might be held via Zoom – allowing anyone in quarantine to participate.
For the political Right, another Supreme Court seat is viewed as one of the most important reasons to have a Republican president and Senate. Moreover, filling this seat – and replacing a liberal justice with a far right nominee – would solidify and strengthen a conservative majority for a generation, moving the current 5-4 split to a more comfortable 6-3 and allowing them to occasionally lose one of the conservative justices in a key case and still win overall. Democrats, meanwhile, have tried to argue that McConnell should be held to his aggressive stance of no Supreme Court justice in an election year. His insistence against filling a vacancy arising in a presidential election year – which he was able to do because Republicans held the majority then as well — barred President Barack Obama from filling the seat vacated by the 2016 death of Justice Antonin Scalia with Judge Merrick Garland, even though the vacancy in that year came in February and not September as happened this year.
Now with numerous high-ranking GOP leaders testing positive over the past few days, Democrats are increasingly demanding that the confirmation vote be postponed. And as Republicans move with alacrity confirm Judge Amy Coney Barrett to fill the vacancy, many have wondered what possible avenues might be available to the Democrats to stop or at least slow down the runaway train – assuming that the Republicans who are positive for COVID stay at home (which, as noted above, is far from certain). Even with the absence of two Senators on the Judiciary Committee, the options are limited and unlikely to succeed (although admittedly, three hospitalized Republican Senators would change this situation – but that seems very unlikely).
First, McConnell just needs a simple majority. There is no possibility of a filibuster. McConnell eliminated the procedural rule with respect to Supreme Court nominees in 2017 to ease Justice Gorsuch’s ascendance to the bench, and the Senate Democrats ended the practice for lower court nominees in 2013 after unprecedented obstruction by Republicans prevented confirmation of a record number of Obama’s judicial appointments. This means that McConnell needs only 50 votes and of course he has 53 Republicans in his caucus, with Vice President Pence ready to break a tie should three GOP senators break ranks.
There is a slim possibility that Democrats could muster the requisite numbers to hold up the nomination. So far, there are two Republican Senators on the record opposing a vote before the election. Senator Susan Collins of Maine stated, “In fairness to the American people, who will either be re-electing the president or selecting a new one, the decision on a lifetime appointment to the Supreme Court should be made by the president who is elected on Nov. 3.” By contrast, Senator Lisa Murkowski of Alaska has only asserted that no vote should take place before the election. “For weeks, I have stated that I would not support taking up a potential Supreme Court vacancy this close to the election,” said the senator. “Sadly, what was then a hypothetical is now our reality, but my position has not changed.” Even assuming her weaker statement could be read to mean that the newly elected president should choose the nominee, no other Republican Senator has come forward to stand with them.
Even if McConnell postpones the vote until after the election, the composition of the lame duck Congress generally will remain the same as before the election – since new members will not be sworn in until January 2021. Lame duck numbers could possibly grow slightly worse for the Republicans if current Senator Martha McSally loses her race to Mark Kelly. McSally was appointed and the race is a special election, so if he wins, Kelly could be sworn in by November 30. However, that would only move the balance of the Senate to 52-48. Cold comfort.
These numbers are not altered by the positive diagnoses of multiple senators this week. As noted above, the current schedule outlined by McConnell leaves room for isolation periods for the three GOP senators who have tested positive so far. Assuming that these senators do not fall so seriously ill that they cannot return to Washington, McConnell still has the votes to advance the nomination out of committee and to confirm Barrett.
No Refuge in Senate Procedure
Is anything to be done? Sadly, not much.
The first part of the confirmation process involves the Senate Judiciary Committee, which will review the record and hold hearings on the nomination. Prior to sending the name to the committee, lawyers in the White House Counsel’s office work with the nominee to fill out background vetting forms for the committee and to examine their taxes and other personal documents, and the FBI does its own investigation. From 1975 to the present, the average time for a Supreme Court nominee to move from nomination to confirmation is 67 days and the median is 71 days. Because Barrett was relatively recently vetted for her seat on the Seventh Circuit, the Republicans will move this part of the process quite quickly.
And the committee will also want to move quickly because Senate Judiciary Committee chairman, Senator Lindsey Graham of South Carolina, is in a competitive race of his own, a first for him in the conservative state and hearings would allow him to flaunt his bona fides for the GOP base. Recently, tweeting his determination to assist the president “in any effort to move forward,” he showed no compunctions abandoning his 2016 promise not to entertain such a nomination. Said Graham in a speech to the Senate in 2016, “I want you to use my words against me. If there’s a Republican president in 2016 and a vacancy occurs in the last year of the first term, you can say Lindsey Graham said let’s let the next president, whoever it might be, make that nomination.” If you trust his word, I have a bridge in Brooklyn to sell you.
Although the average time from nomination to hearing since 1975 has been approximately 40 days, while the median has been 42 days, we can expect Graham to hold hearings well before that time has elapsed, once again based on the argument that the nominees have recently been considered by the committee for lower court slots and thus are already known to them. And it bears remembering that there is no requirement to hold a hearing at all and so this part of the process could be eliminated or truncated if the GOP sees fit.
Once they move to a vote in committee, under the existing rules for a quorum: “Seven Members of the Committee, actually present, shall constitute a quorum for the purpose of discussing business. Nine Members of the Committee, including at least two Members of the minority, shall constitute a quorum for the purpose of transacting business.” But lest you think this gives Democrats a sure fire way to block this nomination, Senate Judiciary Committee rules are easily ignored by the Chair, who would simply gavel past the minority participation as a requirement for a quorum.
Indeed, Graham has already done this. In a 2019 letter, Senator Diane Feinstein attempted to persuade him not to change quorum rules by fiat with regards to legislation dealing with immigration. She wrote,
Judiciary Committee rules require the Committee to honor any Member’s request to have a bill held over for one week or until the next meeting of the Committee, whichever comes later. [Senate Judiciary Committee Rule I (3)]. In addition, the Judiciary Committee rules mandate that ‘Nine Members of the Committee, including at least two Members of the minority, shall constitute a quorum for purpose of transacting business.’ [Senate Judiciary Committee Rule III (1)] This means at least seven Senators from the majority and two Senators from the minority must be present to constitute a quorum to hold over a bill. As you know, there was insufficient attendance to meet this rule and, as such, the Committee was not able to transact any business and S. 1494 was not held over at yesterday’s executive business meeting. Notwithstanding these rules, you announced that at next week’s executive business meeting, ‘we’ll take this up Thursday, next week. We’ll make a motion to change the rules, deem this bill held over, and we are going to vote.’
And that is what will happen in case the Democrats try to defeat quorum in the committee. It is possible Democrats might challenge Graham’s sleight of hand by going to the Senate Parliamentarian to argue that his rules change is out of order. Even were the Parliamentarian to deny the rule change, Graham would simply turn to McConnell, who has another trick up his sleeve –to hold a full Senate vote to overturn the Parliamentarian, as he did with the filibuster for Supreme Court.
Cloture Vote: A Few Days Delay
Once the nominee is voted out of committee, unfortunately, the options do not improve. A nomination, after coming out of committee, gets placed on the Senate’s Executive Calendar the following day and can be called up by McConnell at any time. Bringing it up for debate is a non-debatable motion, meaning it is not subject to unanimous consent. Although there is no filibuster, the cloture petition still governs the process for consideration of Supreme Court nominations. While Democrats could offer a motion to postpone or use a couple of other procedural tools, the most they could gain is a couple of days. McConnell would simply file cloture on the nomination, which after two days would come to a vote and then allow for 30 hours of debate followed by a vote on the nomination. In short, efforts to postpone at this point could gain a few days, but not more than that.
There is one possible play for Democrats if the two Republicans on the Committee are too sick to attend the vote (though again, I believe they would drag themselves there if necessary to secure a vote) and thus they don’t have a majority. If Democrats refuse to show up for a vote and Republicans are down two votes, the Committee cannot report out a nominee. But McConnell again has tools to address a failed Committee process. He can move to discharge the Committee of the nomination and as long as he has 51 senators, he will have the quorum he needs to make the motion. (It is 51 senators he needs here, not 50, because the Vice President can’t break a tie in this procedural vote.)
It bears noting that in the Senate, failure to have a quorum is not automatically registered. A Senator on the floor has to prompt the presiding officer by “suggesting the absence of a quorum.” Thus, a Democrat would need to come to the floor for this purpose and by so doing would help the GOP get its quorum. The motion to discharge is debatable and therefore subject to a filibuster and supermajority vote, allowing Democrats to object and slow down the process – but McConnell could simply overturn the rule through the nuclear option as he did with the Supreme Court filibuster.
In normal legislative business, Democrats have more options to slow the process through guerrilla strategies to make the process more complicated for the GOP. The Senate is a body that generally operates on unanimous consent for all of its business – that is, the objection of a single Senator to a routine matter of business such as the calling of the roll or to waive the reading of the text of a bill or resolution could require the filing of cloture and a cloture vote, which takes several days to resolve. As Michael Waldman, president of the Brennan Center for Justice at NYU School of Law, told Newsweek in 2019, “Democrats have limited tools but the key is a willingness to use what they’ve got. They can demand quorum calls, they can slow down votes and they can make a big public issue of it. That’s the one thing they’ve never done before.”
But this is not true for the Executive Calendar since the Republican Leader does not need to adjourn the Senate to advance the calendar as he does for legislative business. Thus the Senate does not adjourn, but only goes into recess for the night, and upon return, it’s the same day on the calendar and there’s no need to take up the journal, call the roll, or do any of the other routine business that allows for procedural delay tactics.
But what about a quorum in the Senate? Can Democrats deny a quorum? Unfortunately, here too the answer is no. Under Article I, section 5 of the Constitution, a quorum consists of a majority of the Senate or 51 senators. While Collins and Murkowski may not wish a vote to take place before a new president is inaugurated or at least until after the election, it would be foolhardy to think they would help Democrats thwart a vote by refusing to show up for a quorum.
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So what’s left? I think it is exactly what most of us were already fixated on – the election. If Democrats take back the Senate and the White House, they will begin to weigh options for reforming the Court and addressing how far to the right it has moved, and how much it has imperiled our democracy. Adding more justices to the Court, pushing 18-year term limits, applying ethics and transparency rules, all this will be on the table.
On Sept. 20, House Speaker Nancy Pelosi appeared on ABC’s “This Week,” and alluded to other tactics such as another impeachment inquiry to thwart the nomination. How this would work is unclear to me, but when asked about the impeachment option, Pelosi insisted, “We have our options. We have arrows in our quiver that I’m not about to discuss right now but the fact is we have a big challenge in our country. This president has threatened to not even accept the results of the election.” Pelosi continued, “Our main goal would be to protect the integrity of the election as we protect the people from the coronavirus.”
What is clear is that Joe Biden is likely to win the popular vote in this election – which would make him the seventh Democrat to win the popular vote out of the last eight presidential votes from 1992-2020. Nonetheless, Republicans have been able to name 14 of the last 18 justices and they are now shooting for 15 out of 19. If that isn’t a challenge to a democratic system, it’s hard to imagine what one could be.