Here’s some good news: In the hours immediately after Justice Ruth Bader Ginsburg’s death, grassroots donors gave $100 million to Democrats to stop President Trump and Mitch McConnell from installing a new Supreme Court justice. That proves the grassroots is motivated for a protracted fight, and understands the gravity of the situation — and a new Reuters poll shows a large majority of Americans want the court vacancy filled by the winner of the national election.
Now here’s some bad news: Democratic leaders Nancy Pelosi and Chuck Schumer have been signaling that they may not use every last bit of power at their disposal to try to block a Trump appointment that could permanently alter American politics for the rest of our lives.
In a press conference last night with Schumer, Ocasio-Cortez put pressure on the Democratic Senate leader, declaring that “we need everyday people to call on senators (to) make sure that they hold this vacancy open and we must also commit to using every procedural tool available to us to ensure that we buy ourselves the time necessary” to stop the nomination.
Schumer, for his part, said, “If we win the majority, everything is on the table.” Party leaders in Washington are starting to signal that they will consider legislation to add seats to the court -- but adding seats is no sure bet given the ideological complexion of the Democratic caucus.
I spoke with NPR this weekend about the entire situation -- you can listen to it here.
What Democratic Senators Can Do
Let’s review what happened over the weekend, because it tells an important story.
CNN reports that Pelosi “on Sunday said she would not leverage a government shutdown in order to slow down Republicans' push to fill the Supreme Court vacancy.” Meanwhile, Roll Call reports that “there appeared to be no immediate appetite from Senate Minority Leader Charles E. Schumer or members of the Democratic Conference to try to grind the chamber’s limited agenda to a halt, although they have tools at their disposal.”
While Democrats’ power to stop a Trump nominee is certainly limited, there’s one way to know they have at least some power to obstruct: If the roles were reversed and McConnell were in the minority, we all know he would find a way to grind the process to a halt. That fact means Democrats have at least some power they could use. In using that power to slow things down, they would not only put enormous pressure on Republicans, they would also be buttressing the case for a future expansion of the court should Trump and McConnell end up winning the day.
What kind of power do Democrats have? Here’s Roll Call:
The elimination of the supermajority requirement to break filibusters of Supreme Court nominees has left the minority party with limited procedural options, but that’s not to say there are no options other than trying to persuade Republicans that the political consequences of pushing ahead with a Trump nominee could outweigh the benefits.
Since the chamber largely runs on unanimous consent, any Democratic senator could, for instance, gum up the works of the Senate by objecting to everything else McConnell wants to do, forcing Republicans who are up for reelection to spend additional time casting procedural votes… The Democratic minority has generally gone along with unanimous consent agreements, setting up predictable schedules of votes (especially on Trump’s many judicial nominations)...
Democrats could also seek to enforce a Senate rule barring committees from meeting past the first two hours of a day and objecting to all kinds of routine business, from the naming of post offices to the declarations of holidays.
Another option could be moving forward with impeaching Attorney General Bill Barr. As Business Insider notes: “Impeachment would compel the U.S. Senate to hold a trial at a time when it has precious few days left on its calendar to confirm a replacement for Ginsburg.”
Under existing Senate rules, a similar dynamic may exist with War Powers Act resolutions, according to Kate Kizer of Win Without War.
The point here is that instead of simply declaring defeat within 72 hours of Ginsburg’s death, Democrats can be convening their legislative experts to explore all sorts of creative ways to outmaneuver McConnell and Trump. Preemptively capitulating and hoping things somehow get better later is not a legislative strategy -- it is complicity.
Reject Learned Helplessness
To be sure, McConnell could simply put a nomination on the Senate floor without even a confirmation hearing, and the GOP could just vote the nomination through. There’s no way around that possibility.
But that doesn’t justify Democrats refusing to make such a move as politically untenable as possible.
It doesn’t justify the opposition party refusing to mount any kind of opposition -- and it sure as hell doesn’t justify that party rolling over and playing dead only a few days after Ginsburg’s death.
It’s certainly fair to wonder: Would procedural obstructions stop McConnell? Would shutting the government down -- or even threatening to -- change the dynamic?
It’s impossible to know. But one thing you can feel confident about: If Democrats do absolutely nothing, then Trump will almost certainly get his nominee.
All of this should be obvious. It shouldn’t be controversial to ask Democratic lawmakers to actually do everything they can to stop a right-wing high court appointment that could reshape jurisprudence for the next half century.
It shouldn’t be considered apostasy or disloyalty to ask the opposition party to actually use its power to oppose -- in both word and deed.
The only reason these demands are seen as controversial is because Democratic Party politics is now defined by a culture of learned helplessness. The party’s leaders play dead, the party’s media outlets make apologies for such behavior, and many of the party’s affiliated advocacy groups and activists go right along with the ruse, and make all sorts of creative excuses for it. That’s happened so many times that surrender is now the default setting.
That learned helplessness is part of how we got to this horrific moment of crisis, and it has to end.
How many times will Democrats not realize that having a real fight -- even a losing one -- actually serves a longer-term cause of mass mobilization that can end up changing the political paradigm?
How many times will Democrats preemptively surrender in the policy arena in the name of bipartisan compromise, only to then be rewarded with crushing losses in elections?
How many times will Democrats insist upon the future-looking “live to fight another day” strategy, only to get so crushed in elections that they have even less power to fight in the present?
The future is now. It’s time to stop surrendering.
As AOC said last night: “We need to make sure that we mobilize on an unprecedented scale to ensure that this vacancy is reserved to the next president, and we must use every tool at our disposal.”
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