Senate Dems Have a Big Supreme Court Opportunity Today. Will They Use It?

By
David Sirota

Mitch McConnell desperately wants unanimous consent to pass a measure keeping Trump’s Supreme Court nomination on track. Democrats could potentially stop it. The question is whether they’re willing to.

Senate minority leader Chuck Schumer wears a protective mask at the US Capitol in Washington, DC. (Stefani Reynolds / Getty Images)

The first rule of Democratic Fight Club should be: Don’t ever do what Mitch McConnell wants you to do. Today, we will see if Senate Democrats understand that rule yet. They have a rare opportunity to use their power to try to complicate McConnell’s plan to confirm Donald Trump’s third Supreme Court nominee, Amy Coney Barrett. 

Whether or not Democrats decide to use that power will tell us exactly how serious they are about blocking Trump’s court pick, making sure millions of Americans get some relief during the economic crisis, and winning crucial Senate races in the 2020 election. 

Here is the basic summary of what’s going on: Democrats have the power to potentially block McConnell’s attempt to maintain maximum control of Senate proceedings in order to keep their Supreme Court confirmation plan on track. That scheme was outlined in a McConnell press release yesterday saying he wants to secure a consent agreement to temporarily adjourn the Senate. 

McConnell wants this adjournment resolution because keeping the chamber open might allow Democrats to use the normal legislative process — as they recently did — to complicate the GOP’s plans while Republican senators are either campaigning for reelection or under COVID quarantine (three have already tested positive for COVID, and there is evidence that a number of GOP senators could have been exposed to the virus).

Adjournment also would allow Republicans to stall any potential progress on a pandemic relief package for the next two weeks.

If Democrats are able to vote down McConnell’s adjournment resolution, they could use their leverage to demand an adjournment resolution that defers the Supreme Court confirmation hearings and moves forward a pandemic relief package. At the very least, they could force Republican senators to leave the campaign trail and stay in Washington to cast procedural votes — which would only help Democratic senate candidates in their races.

“Every Democratic Senator Needs to Be Ready to Vote to Deny McConnell Adjournment”

The key thing to understand is this: McConnell desperately wants unanimous consent for his adjournment resolution, because he doesn’t want to force Republican senators to fly back to Washington to actually cast votes — and because of both the election campaign schedule and the COVID outbreak, he doesn’t have a clear sense of how many could actually make the journey. That uncertainty potentially gives Democrats the power to block McConnell’s adjournment resolution. As long as a majority of senators present are Democrats, they could vote it down.

It should go without saying that in this superheated political environment, when McConnell wants something, the Democratic reflex should be to try to deny him that thing, because we know his primary goal is advancing the GOP’s extremist agenda. This is not a person with a conscience who does anything out of any respect for humanity, decency, or the common good. Every seemingly innocuous maneuver he makes should be viewed as a nefarious maneuver for power.

In this particular case, if Democrats deny McConnell unanimous consent, vulnerable GOP senators in key battleground states may have to leave the campaign trail, because Republicans would potentially need every vote they have while three of the party’s senators are out with COVID. If Democrats gather enough of their caucus to the senate floor, they may be able to vote down an adjournment resolution on a roll call vote.

At that point, Democrats could deny adjournment and use their leverage to demand that any adjournment resolution include provisions putting off the Supreme Court hearings until after the election.

“Every single Democratic senator needs to be ready to vote to deny Mitch McConnell adjournment tomorrow, unless that adjournment takes Barrett off the table,” tweeted Fordham law professor Zephyr Teachout, who has been one of the most prominent Democratic voices demanding a stronger stance from congressional Democrats. “Make McConnell produce 48 senators. Don’t take his word he has the votes. Protect America.”

To be sure, Republicans’ reckless behavior in creating a COVID super-spreader event at the White House has turned the US Capitol into a potential coronavirus hot zone right now (which is even more reason to halt the entire Supreme Court confirmation process!). Democratic senators going into that hot zone to try to procedurally stall Barrett’s nomination is not without some risk, even though masks and PPE [personal protective equipment] can make the risk more manageable.

But Teachout notes that millions of Americans are facing far bigger day-to-day risks in their jobs and get paid far less money than US Senators do to take those risks. She also argues that lawmakers going to the Senate floor is a risk that must be weighed against the risk of a permanent 6-3 conservative Supreme Court majority making laws for the rest of our lives.

“Essential workers show up every day. Nurses show up every day. Every Democratic Senator needs to show up tomorrow to vote,” she tweeted. “The ACA and women’s rights and LGBTQ rights and voting rights and labor rights and anti-corruption and freedom vs. big corporations is at stake.”

Demand Progress’s David Segal put it this way:

GOP Game of Thrones vs. Democratic West Wing

I’ve said it before and I’ll say it again: McConnell is obsessed with power and taking over the courts, and he treats every single day as an episode of Game of Thrones — all of his moves are power moves, even ones that seem harmless. And so when he signals that he needs a temporary adjournment resolution, he is telling us that this is part of his Supreme Court strategy. By contrast, Democrats for too long have treated every day as an episode of The West Wing, thinking that norms and etiquette can stop the march of fascism.

Today, Democrats have a rare opportunity to shift the dynamic — they can start behaving as if they understand that Jed Bartlet–style decorum is not going to stop a Senate majority leader flying an undead blue fire-breathing dragon.

Of course, gumming up McConnell’s adjournment resolution is not a singular panacea. However, it can be one move in a larger series of maneuvers that makes it as difficult as possible for Republicans to get their way — and playing for time in such a fluid environment is critical.

Just remember: Two weeks ago, Democrats and their liberal fans were scoffing at progressive groups like Demand Progress for suggesting that there was absolutely nothing Democrats could or should do to try to stop or stall a Trump Supreme Court nomination. Fourteen days later, reality intervened — Republicans have temporarily lost at least three senators who have COVID and potentially more who are self-quarantining. 

That underscores an important point: fighting hard and playing for time always has value because circumstances can shift — and that is especially true during a pandemic. This is why you should always fight on principles, even when the odds are stacked against you — because sometimes, reality changes the game.

McConnell understands that truism — which is why he is always using every tool at his disposal to push his extremist agenda. He understands that there is always a value in fighting. It’s time for Democrats to understand that too.

Today they have a chance to do what McConnell would do if the roles were reversed. The question is: will they?