Last Wednesday was a rough day for liberals and progressives in America.
First the Supreme Court decided in favor of the plaintiff in the Janus v. American Federation of State, County, and Municipal Employees (AFSCME) case, thereby undermining public sector unions’ ability to unify around better wages, benefits, workplace protections and standards for working families, basically turning the entire nation into a “right-to-work-for less” sector.
Then Justice Anthony Kennedy announced his retirement from the bench, handing Donald Trump a second opportunity to shape the nation’s legal trajectory for decades.
After Democrats did basically nothing to expose Senate Majority Leader Mitch McConnell’s unconstitutional obstruction of Merrick Garland in 2016, many fear Democrats, being the congressional minority, are either powerless and/or too pusillanimous to retaliate now there is most definitely going to be another conservative on the Court to threaten same-sex marriage, abortion rights, voting rights, and even the president’s accountability in Special Council Robert Mueller’s investigation into Russian interference in the 2016 presidential election.
But don’t write Democrats’ chances off yet. They have some legitimate strategies at their disposal to at least gum-up Republicans’ mojo.
One thing Democrats can do is convince moderate Republican senators to flip. According to myriad political scientists, this is the most viable option.
Current Senate rules dictate only a sparse majority is needed to confirm a Supreme Court nominee. Republicans hold that majority 51-49. However, moderate Republican senators Susan Collins and Lisa Murkowski could be the lynchpins in the vote against Trump’s choice as both appear reticent to confirm a nominee opposed to the 1973 decision legalizing abortion, Roe v. Wade.
“I would not support a nominee who demonstrated hostility to Roe v. Wade because that would mean to me that their judicial philosophy did not include a respect for established decisions, established law.”
Sen. Murkowski has not been so forthright, but she has a history of supporting abortion rights, unlike her GOP colleagues. She told The Hill Roe v. Wade would be among the factors she considers in her confirmation decision.
“I do not like abortion, but I recognize that the Supreme Court has said that a woman has the right, the reproductive right, to choose. I’ve supported that.”
A caveat, though, is the fact that several Democratic senators in deeply Republican states that voted for Trump–Joe Manchin of West Virginia, Joe Donnelly of Indiana, and Heidi Heitkamp of North Dakota–are up for reelection this November. Every one of them voted to confirm Trump’s first Supreme Court nominee, Neil Gorsuch.
A second tactic, albeit unprecedented at the federal level, is “quorum-busting.” This could be used to attempt to block the vote by depriving the Senate chamber of the 51-Senator quorum required for debate and vote.
Republicans hold 51 seats, but Sen. John McCain’s health has prevented his voting since December. If 47 Democrats and Independents Bernie Sanders and Angus King, who caucus with Democrats, do not show up on the appointed day, Republicans would not have a quorum, therefore rendering them unable to confirm a nominee.
This has been effective at the state level. In 2003, more than 50 Democrats in the Texas state legislature fled to Oklahoma for five days to delay a redistricting bill. When the bill was re-proposed, 11 Democrats went to New Mexico for 46 days.
In 1840, Abraham Lincoln leaped out a window to prevent a vote in the Illinois state legislature.
The caveat here is the Senate sergeant-at-arms could request then compel absent senators to report to the chamber. If they refuse, they can be arrested. This is what happened in 1988 when Democrats ordered Oregon Republican Senator Bob Packwood arrested after he absented himself during a campaign spending bill filibuster. He was returned to the Senate chamber feet first.
To avoid the threat of arrest, Democrats could agree to attend the appointed session but refuse to vote. They would have to explain their abstentions, though. If the Senate body does not deem the explanations compelling or disallows the abstentions, the senators would have no choice but to vote.
A third possibility has to do with term limits. The Constitution states justices are able to hold their seats indefinitely “during good behavior.” The only way they can be removed is through impeachment.
But what if they were confined to limits?
This would require a constitutional amendment, unlikely with this Congress. Republicans aren’t about to cede near-total control.
A fourth consideration has to do with Special Council Robert Mueller’s investigation.
During a June 28 hearing before the Senate Judiciary Committee, Sen. Cory Booker (D-NJ) argued:
“The president of the United States is a subject of an ongoing criminal investigation…that could end up before the Supreme Court. If we’re not going to thoroughly discuss what it means to have a president with this ongoing investigation happening, who is now going to interview Supreme Court justices, and potentially continue with his tradition of doing loyalty tests for that person, we could be participating in a process that could undermine that criminal investigation.”
Therefore, any Trump nomination should be “delayed until the Mueller investigation is concluded.”
The final strategy stretches all the way back to 1937 when President Franklin Roosevelt proposed adding as many as five more justices to the high court, a move many regarded a partisan power grab.
This could only realistically be achieved, though, through Democrats’ regaining the majority in Congress and the White House.
And that’s yet another reason why the 2018 mid-term elections are so important.
Trump’s presidency, Congress, and decisions the Supreme Court will make on cases not yet come to fruition, all come down to elections.
The power really does rest with us and our decisions at the ballot box.
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