September 22, 2020

Ed. note: The video above is Ezra Levin explaining how the same tactics used to stop the Senate from repealing Obamacare can help with the Senate push to confirm Trump's SCOTUS pick for Ginsburg's seat.

Here we are again, figuring out what a Senate minority of Democrats can do to gum up the works and force a delay/derailment of Mitch McConnell's juggernaut of a Supreme Court appointment. When we last faced this, it was "Lock down 49 and fight like hell." Now Democrats have 47, but the argument remains. That argument, by the way, came from former Harry Reid staffer Adam Jentleson, who is like his former boss in understanding how to use procedure. He's back again this time, with some advice for this moment, with "steps Democrats can take to apply maximum pressure, brand the process as the illegitimate farce it is and lay the groundwork for desperately needed reform that can reverse the damage early in 2021 if Democrats win in November."

Here's the first whisper of a chance Democrats are listening and using the tools they have available to start gumming up the works.

The rule says that committees can't meet if the Senate has been in session for two hours. The rule is routinely waived. Someone will come on the floor “I request unanimous consent for committees to meet during today’s session," and unanimous consent (UC) is usually given. Not today. That's a start. Gum up the works and stop agreeing to UC requests. It takes someone being on the floor or ready to go to the floor at any given moment, but having one person stationed on the floor at all times isn't that difficult. They can rotate the duty. It would force Republicans to have to work to get meetings on the schedule and just make it harder.

They can up the headache quotient by making 51 Republicans—at least half a dozen of whom need to be spending most of their time on their reelections—have to be at the Capitol every day. Democrats can vote "no" on all of the motions to proceed to executive session, when nominations are considered. First they have person designated to holding the floor say "no" to a UC to go into executive session, then all vote "no" on the resulting motion to proceed. That means 51 Republicans have to show up to vote and it means a lot of time is eaten up.

They achieve that as well by denying quorums. Before the Senate can do anything, legislation, amendment, nominations, there has to be a quorum of a simple majority—51 votes. Democrats can make 51 of the 53 Republicans have to be on hand. Every. Single. Day. They can make Republicans be in the Senate chamber and having to stay there, keeping them from raising money with phone calls and fundraisers. Senate Democrats, as long as they have the one person there to deny UC requests, can spend their time on their reelections. The fun thing is, Democrats can also suggest the absence of a quorum as many times a day as they feel like, and then sometimes show up for quorum calls, and sometimes not. If they suggest the absence of a quorum and then Republicans can't round up the 51 senators at a time they need to have one, they have to adjourn. The Senate doesn't continue work that day.

They can also eat up lots and lots of hours by forcing a debate. On everything. Anytime a Republican comes to the floor to talk about anything—and every week they do this with their pet issues—have a Democrat there to ask them to yield to a question. Be there every morning when McConnell uses his "leader time" to lie about Democrats to challenge him. To ask him yield to a question, and them force him to answer questions about coronavirus and why they haven't passed a bill to help Americans; about pushing for a Supreme Court nominee that will take away Americans' healthcare when he has no replacement bill in place; about everything and anything that they want to. Just mess with him on the floor and eat up time.

And here's a big one that will go against their grain: Democrats need to boycott the confirmation hearings. They'll want to be there to score points on television, but their absence won't change the outcome of the hearings at all—Trump and McConnell already have all the votes they need and the nominee hasn't even been named yet! But it will highlight the illegitimacy, the irregularity, and the lack of simple democracy in the proceedings. As Jentleson says, "Attending confers legitimacy, and refusing to attend will send a powerful statement that they deem the process and the nominee illegitimate."

Furthermore, as he points out, not letting the Senate proceed as normally, not letting the hearings proceed as if they were normal, " will brand it as fundamentally different from anything that has come before." That means the traditional media can't report it as "a partisan squabble," "both sides digging in," and all the other tropes they fall into automatically when reporting on contentious issues. They'll have to work harder to report on it and they'll have to talk to Democrats about why they're doing this.

For the next six weeks, that's what they need to do to try to stop this nomination from getting to the floor. The landscape will have changed in unpredictable ways after the lame duck session—a big loss of Republicans could make some of those looking ahead to tough races in 2022 think twice about going forward with it. Which is one reason McConnell might try to rush the vote before the election, and just one more reason why Democrats should deploy every possible tactic to stop it.

Published with permission of Daily Kos

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