Democrats step up hardball tactics in Supreme Court fight

Senate Democrats are ramping up their hardball tactics in the fight over President Trump’s Supreme Court nominee.

Democrats aren’t able to block the nomination on their own, but they are pulling procedural levers to gum up the Senate in protest of the GOP plan to confirm Judge Amy Coney Barrett before the Nov. 3 elections.

The multipronged effort, including limiting committee meetings and taking the rare step of forcing votes, is prompting Republican warnings that Democrats could keep the Senate in Washington during the final weeks of the 2020 campaign.

“Chuck is leading us in … considering procedural options. Some he announces in advance, some for obvious reasons he doesn’t, and I think he’s trying to make it clear that the process created by [Senate Majority Leader Mitch] McConnell for this nominee is such an outrage that the American people have to be reminded ,” said Sen. Dick Durbin (Ill.), the No. 2 Senate Democrat.

Sen. Chris Murphy (D-Conn.) said Democrats were willing to use what limited options they have to buy themselves more time to keep the focus on the impact of a 6-3 conservative majority, which they warn will be the death knell for the Obama-era Affordable Care Act. 

“There are many of us who believe that they’re trying to ram this nominee through. … So we feel like we need to extend this process,” he said. “So I would expect that we’ll use the tactics that we have.”

The fight comes as Democrats are powerless to stop Republicans from confirming Barrett without the support of at least four GOP senators — a herculean task given McConnell’s (R-Ky.) grip on the caucus.

But they are facing fierce pressure from their base and wings of the caucus to use every option on the table to oppose Barrett’s nomination and show that it is not “business as usual,” with Republicans primed to set a new record for the closest to Election Day a Supreme Court nominee has been confirmed. Though other nominees will have been confirmed faster, they were further out from a presidential election.

“Look we’re going to have to find our way through this. … The caucus will work through these things one issue at a time. But there’s a lot of passion about using every procedural tool we’ve got to slow this down,” said Sen. Christopher Coons (D-Del.) about the prospect of forcing the Senate to stay in session after this week. 

Fueling Democratic angst, Republicans refused to give Judge Merrick Garland, then-President Obama’s final Supreme Court nominee, a hearing or a vote eight months out from the 2016 election; Republicans argue the difference in 2020 — that they control both the White House and Senate — is a significant distinction. 

But Democrats have drawn a hard line against calls to boycott Barrett’s hearing, warning it would only result in her nomination moving more quickly and with softball questions being asked during the high-profile, days-long hearing that’s slated to commence on Oct. 12.

Democrats are largely aligning themselves with Schumer’s use of the Democrats’ limited procedural options after a rocky start last week, arguing they can’t treat Barrett’s nomination as a normal Supreme Court pick.

“We can’t do business as usual in a situation that’s so extraordinary where the Republicans are breaking their word to rush a nominee so they can kill the Affordable Care Act,” said Sen. Tim Kaine (D-Va.).

The approach by Democrats has earned them praise from activists urging them to go all-in on Barrett’s nomination.

Adam Jentleson, a longtime staffer for then-Majority Leader Harry Reid (D-Nev.), said the procedural options would help brand Barrett’s nomination as “illegitimate.”

“New sign of hardball from Schumer & Senate Dems. … They forced McConnell to recess the Senate until noon as a defensive move against Dem threats to invoke the 2 hour rule. This plus filing cloture on the ACA bill today = applying pressure & forcing GOP mistakes. Good stuff,” he tweeted.

Democrats began invoking archaic Senate procedures last week when they drew upon the so-called two-hour rule, which limits the ability for committees to meet after two hours. The rule was invoked again on Wednesday, with Republicans trying to get it by not bringing the Senate into session until noon.

Asked about using the tactic, Sen. Joe Manchin (D-W.Va.) defended the decision, telling reporters: “We don’t do anything around here anyway, we’ve got plenty of time to do meetings.”

Since then they’ve stepped up their efforts.

Schumer, in an extremely rare step, was able to tee up a procedural vote for as soon as Thursday on a bill that would prevent the Justice Department from arguing in courts that the Affordable Care Act should be struck down. Democrats view health care as their best weapon against Barrett because they believe she will provide a vote to strike down the 2010 law.

“Leader McConnell and all my Republican colleagues will have an opportunity to set the record straight with their vote,” Schumer said about the procedural vote.

Typically only McConnell, as majority leader, determines what legislation comes to the floor for debate and a vote, absent unanimous consent. The late Sen. Tom Coburn (R-Okla.), without informing either Senate leaders, used the same procedural lever in 2011 to force an amendment vote related to ethanol.

Sen. John Thune (S.D.), the No. 2 GOP senator, said he was told that a similar tactic was used a decade ago, in an apparent reference to Schumer.

“This is kind of in the category of pulling a fast one. And pretty uncharacteristic of the normal decorum in the Senate. … Obviously they’re sore about the Supreme Court nomination and doing everything they can to retaliate,” he said.

Democrats have not tipped their hand on whether they will try to keep the Senate in session past this week. But GOP leadership is warning their members that they could be forced to be in Washington and off the campaign trail. Kaine said as of Wednesday evening it was still under discussion.

But Thune said, based on conversations with Democratic senators, he expects the Senate to be in next week, and McConnell teed up several votes on judicial nominees for next week. 

“Unfortunately looks like it,” Thune said. “But don’t blame us, it’s the Democrats.”