Notice & Comment

The SCOTUS Nomination, Senate Procedure, and Democratic Strategy

With the announcement of Justice Kennedy’s retirement yesterday, many liberals have called on Senate Democrats to take action to block the Senate from confirming a new nominee to the Court. Here are six thoughts on the matter, from a Senate procedure point-of-view.

1.This is a wholly different situation than the Garland nomination in March 2016. In that case, the party seeking to block the nomination had a majority in the Senate, as the Republicans held 54 seats throughout the 114th Congress. Blocking a nomination with a majority, procedurally, is easy. Majority Leader McConnell simply chose not to take up the nomination on the Senate floor. So long as he could persuade at least 50 members of his caucus to not make a motion to proceed to the nomination—and to table any rogue minority motion to do so—the nomination would never reach the Senate floor. It’s also entirely possible that McConnell would have had the votes to defeat the Garland nomination on the merits, but blocked its consideration for strategic reasons or to just not risk having miscalculated.

The Democrats are not in the same situation. They are in the minority in the Senate in the 115th Congress, with 49 seats. Consequently, they cannot directly block a motion to proceed to the nomination. Nor can they effectively filibuster the nomination. In the wake of the nuclear option being used in 2013 (for non-SCOTUS nomination) and 2017 (for a SCOTUS nomination), a cloture motion to end debate on a nomination can be obtained by a simple majority. If 50 Republican Senators are determined to confirm a nominee to the Court, there is little the minority can do to directly interfere. They can filibuster to force the majority to get cloture, and they can use all of the allotted post-cloture debate time (30 hours) to delay, but they have little chance of directly procedurally stopping the nomination.

2. Many liberals  yesterday were exhorting the Democrats to “take all possible actions” or “to play hardball” to block the nomination, often citing McConnell’s actions to block Garland. But you cannot black box the hardball; you need to actually specify what you would like the Democratic minority to do, procedurally. And here’s the cold truth: a majority can play a hardball strategy of this sort through inaction, which is simple and effective. McConnell only had to worry about maintaining his coalition inside the Senate, and the possibility of public opinion blowback outside the Senate.

For the Democrats to employ a hardball strategy now, inaction will not work, as shown above. Unless they can defeat the nomination on the merits, their only procedural strategies are to (1) make the costs of considering the nomination so high that the GOP abandons it; or (2) literally grind the Senate to a halt such that the nomination cannot be taken up. Neither is even remotely likely to succeed, and attempting either could result in additional costs (mostly electoral) for the Democrats, in both the Senate and the House.

3. How could the Democrats increase the costs of considering the nomination? By using obstructive tactics to slow down other issues the Senate majority would like to take up. Instead of agreeing to yield back post-cloture time on other judicial nominations, they could demand (and use) the full post-cloture debate period. They could filibuster all general legislation. They could demand recorded votes for things routinely done by voice vote or unanimous consent. They could refuse to vote for cloture on appropriations bills (which require 60 votes), and shut down the government. In essence, they could conduct a cross-issue filibuster, in the hopes that a number of Republican Senators would decide that the costs of pursuing the nomination were too high in terms of other legislation they would like to pass.

This is highly unlikely to work. First, a SCOTUS seat is something the Republicans are willing to pay a very high price for. Even if you could stop all legislation and every other judicial nominations dead in its tracks (you can’t), it might not persuade them to abandon a SCOTUS confirmation. Second, if the Democrats resorted to an all-out general dilatory posture that raised the costs to an unacceptable level for some GOP Senators, the Republicans might use the nuclear option to change the rules in order to restrict the dilatory tactics. Finally—and most importantly—aggressive hardball tactics are constrained by public opinion. Even if Democrats pursued a dilatory strategy that somehow successfully blocked the nomination through the election, it would be a pyrrhic (and short) victory indeed if the cost was a net loss of 4 Senate seats, or control of the House. The fear of that public backlash creates a practiacal prior restraint on even attempting many theoretically-possible hardball tactics.

4. A more radical option would be to try to literally grind the Senate to a halt. This would involve objecting to the myriad of routine things that are done each day in the Senate by unanimous consent. Refuse to skip the approval of the journal. Refuse to allow committees to meet while the floor is in session. Refuse to adjourn without a vote. Refuse to end quorum calls. And then take positive actions that are allowed under the rules but only rarely employed. Demand the reading of all amendments. Demand all motions be reduced to writing. Make rogue motions to proceed and demand recorded votes when the motions are tabled. You can also add in pure dillatory actions. Make constant points of order, appeal the rulings of the chair, and demand recorded votes on the tabling of the appeal. And so on. In effect, seek to make the Senate literally non-functional.

The problem, of course, is that this will only work, again, if the majority is not willing to change the rules and the public blowback isn’t costly enough to punish those who try it. It is highly unlikely the Democrats would even consider this option precisely because they are constrained by the fear of majority rules changes and public opinion blowback that would lead to electoral losses. And not just in the Senate, but in the House as well.

5. Public opinion constrains hardball tactics in Congress much more than most people appreciate. Most actions taken (or not taken) by individual Senators and by political parties are done with an eye toward the public reception of the action. Escalating hardball tactics can cause reactions both by other political actors and by voters. The threat of negative voter reaction to assertions of power limits the options for political actors, and prevents them from using all of the weapons at their disposal. Consider a somewhat radical example: if one Court seat is so important to Republicans, why don’t they simply pass legislation expanding the Court to 11 (or more) seats?

The answer is twofold. First, they currently do not have a majority to abolish the legislative filibuster. For a variety of reasons, members prefer it continue to exist. But more importantly, they likely believe that such a move would either trigger a massive public electoral backlash, or a massive retaliatory procedural backlash from the Democrats, or both. Hardball tactics are only successful to the degree they don’t generate backlashes that leave you worse off. McConnell correctly assumed that blocking the Garland nomination would produce no such devastating backlash. Most Senators, I would wager, believe that trying to pack the Court would.

6. Because of the ultimate futility of minority procedural options in the current scenario, it is highly likely that the Senate Democrats will only try to fight the SCOTUS nomination on the merits. While some liberals have hopes that Senators Murkowski and Collins can be convinced to reject the nomination, that is probably just wishful thinking. I suspect the nominee will ultimately win 53-56 votes, all Republicans voting for him or her, plus Democratic Senators Manchin, Heitkamp, and Donnelly. The only question is whether other red state Democrats (McCaskill, Tester, Jones, etc.) vote to confirm, and whether Senator McCain comes back to Washington.

Accepting that they cannot defeat the nominee on the merits, and that a procedural strategy has almost no chance of succeeding and high potential electoral and/or procedural costs, Democratic leaders will instead pursue a strategy of trying to shape the narrative around the nomination and confirmation, in an attempt to extract an electoral benefit in the November elections. They will (correctly) reason that gaining control of the chamber is the surest way to limit SCOTUS confirmations over the next 2.5 years, and that the longshot hope of blocking the current nomination likely decreases the chances of taking control of the chamber, and thus in turn increases the likely number of SCOTUS nominees confirmed during president Trump’s term.

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