In selecting Amy Coney Barrett to fill the vacant Supreme Court seat, President Trump followed three precepts circumstances demanded.
1) The nominee needs the support from 50 out of 53 GOP Senators. This ruled out any Tea Party type candidates likely to tear down the status quo. Amy is right-leaning and a constitutional conservative, not radical. She will likely to rule overwhelmingly for Article 1 of the Constitution, but less for the 10th Amendment. Her record indicates she will move the court right, but maybe not overturn previous liberal laws. A commitment to follow precedent is what those Senators want to hear.
2) The timing of nominating during election season meant politics would be unavoidable. It had to be a candidate that would please some groups critical for a Trump victory in November, but at the same time, not offend other groups that are as important.
3) She must be confirmed quickly. So, no unknowns or dark horses. Last-minute revelations that have the potential to throw Senatorial deliberations off course needed to be avoided. Amy is known, and her life has already been reviewed and dissected for a seventh circuit judgeship.
These three criteria were met, but a brutal confirmation battle still lies ahead.
“Whoever is more vigilant in observing the designs of the enemy in war…can have greater hope for victory”. Machiavelli
Machiavelli said, in war, whoever knows the enemy’s tactics in advance can have greater hope of victory. Democrat House speaker, Nancy Pelosi alluded to arrows in her quiver she intends to use, and it is vital Republicans know their intentions.
A largely OVERLOOKED indication, came in the form of a memo to Democrats entitled “Safeguarding the Court,” written by former Senate staffers, and made public as a way of pressuring Senate minority leader Chuck Schumer. It lays out a whole lot of motions, rules of order and procedures, the bottom line of which is – you can slow this confirmation process down and make things highly inconvenient for Republicans.
Over eighty groups in New York state alone pressed Schumer for digital meetings to strategize for the coming fight. They are demanding he does everything in his power to block Senate majority leader Mitch McConnell and President Donald Trump from filling the vacant seat before the election.
Other Democrats, including influential Congresswomen Rep. Alexandria Ocasio-Cortez, reiterated this, stating that Ruth Bader Ginsburg’s dying wish MUST be honored, and the seat left for a new President to fill.
The memo says:
“Democrats must act to delay action by Leader McConnell to fill Justice Ginsburg’s Supreme Court seat. Denying action before the election could markedly increase the probability that the results of the election would change the vote in the Senate and thereby allow for the seating of a more progressive Justice. Failing that, moving forward with confirmation during a lame-duck session, if consent of the governed had been denied, would buttress the case for structural Court reform”.
They say this has more chance of success when compared to the situation during the Gorsuch and Kavanaugh confirmations, as voters might vote to change control of the Senate and/or the White House in a matter of weeks and Democrat control in the House of Representatives can play a part in compelling certain actions in the Senate.
It urges Congressional Democrats to enter a war-room posture and get together with people most knowledgeable of Senate (and House) procedure for the best tactical ideas. This is why Harry Reid keeps popping up on the mainstream news channels. He is probably on hand for the digital strategizing meetings too. The memo does state that the measures they suggest might not actually thwart McConnell in getting the nominee confirmed, but they say “we have reason to believe that not all potential options have been thoroughly explored”. Further, “this document intentionally omits discussion of certain creative tactics that rely upon the element of surprise”.
One might recall “creative tactics” from events surrounding the Kavanaugh hearings, when Deborah Ramirez, found brand new memories in her head about an incident implicating Justice Kavanaugh. Remember that time? When it was only “after six days of CAREFULLY ASSESSING HER MEMORIES and consulting with her attorney, Ramirez said that she felt confident enough of her recollections to say that she remembers Kavanaugh had exposed himself at a drunken dormitory party”.
Nineteen tactics are mentioned in the memo. Here are a few:
- Exercise the Right to Delay Senate Action: Where there is no unanimous consent agreement governing time to debate or cloture, a Senator can be recognized and SPEAK AT LENGTH. Who gets recognized to speak can speak for a long-time. Ted Cruz used this tactic hilariously reading Green Eggs and Ham to try and stop the passage of Obamacare. In fact, the memo specifically references a similar Republican obstructive tactics document used by Republicans when trying to block Obamacare.
- Object to Routine Consent Agreements: Any Senator can object to routine unanimous consent agreements — adjournment, recess, approving the journal, or to forgo the Morning Hour. If roll-call votes are forced on such basic motions Senators will be forced away from other priorities, and the Senate will be prevented from taking other actions during this time. These take precedence over a motion to proceed to the consideration of a nomination. If the Senate adjourns without a unanimous consent agreement a new legislative day starts with the morning hour, a 2-hour period which has several required procedures. During this time, any Senator could make a non-debatable motion to proceed to an item on the Senate calendar, ensuring more delays.
- Rule XIV: This rule lets Senators place any measure on the calendar within two legislative days. This means Schumer could ask Democratic Senators to introduce bills en masse and seek to put them on the calendar. If Schumer could get the floor, he could move to proceed to each in turn and continue to repeat, stacking up an almost endless series of votes on motions to invoke cloture on motions to proceed to Democratic priorities. To prevent this, the Majority Leader would have to keep the Senate locked down and prevent the Democratic leader from getting recognition or continue to recess the Senate to prevent there ever being another legislative day.
- Measures the House can take: Since Democrats now control the House, they can use House measures to tie up the Senate. For example, articles of impeachment or War Powers resolutions – would automatically be given priority on the Senate schedule via current rules. Another House measure that would impede the Senate is if they passed amendments to bills already passed by the Senate, but pending in the House, and sent them onto the Senate. The messages that accompany such amendments are given privilege in the Senate. If there is no cloture or a unanimous consent agreement governing the Senate floor, a Senator could ask for one of these messages to come before the Senate. They would then make motions to do with the message meaning more immediate roll-call votes or offer a motion to concur with an amendment and so on.
- Stalling the Judiciary Committee: Here Democrats can DEMAND that the Committee takes the time that it customarily does, to review the record of Supreme Court nominees. They can object to unanimous consent for committees from meeting past the first two hours of a day and object to all kinds of routine business. Or, under Judiciary Committee rule I, paragraph 3:
“At the request of any member . . . a . . . nomination on the agenda of the Committee may be held over until the next meeting of the Committee or for one week, whichever occurs later.”
The memo encourages that a Democratic Senator on the Judiciary Committee should demand that the nomination be held over for the week. And when Republicans need to produce the presence of a quorum (minimum amount) of Judiciary Committee Senators to report out the nomination. “Democrats might choose not to help produce the necessary Senators”.
The goal is to keep Republican senators in Washington and unable to campaign for re-election in tight races.
There are more current Republican senators than Democrat ones up for re-election. Delay tactics will keep incumbents busy in Washington distracting them from their state races. The memo notes, “this might become increasingly untenable because up to a dozen sitting Republicans are defending their seats in close races and will want to return home to campaign — including to participate in debates and other events they will be loath to miss.” Moreover, it will signal to the Democrat base ‘this is important, this is what is at stake’ to motivate those voters. Potential Democrat voters will want to see Congressional Democrats fighting to protect the Court and its liberal sway. They will say ACB on the courts will take away their rights to healthcare. If Democrats representatives do not put up a fight, the base will become demoralized undermining enthusiasm. Democrats have a lot to lose.
To be sure, a lot of Trump supporters may not be thrilled with the pick, but Amy made a positive start with a speech pitched to head off potential charges against her: That she isn’t beholden to a husband in some Handmaid Tale fiction, that she can praise RBG who came before her and that affection for a person is based on their personality, not a judicial opinion. The Kavanaugh hearings changed the norms for Supreme Court confirmation hearings. A similar uniform rallying from the GOP will be required again soon.
Carol King received a first-class BA (honors) in History and Politics from Stirling University, along with an exceptional commendation for a study on US public opinion and Foreign Policy. She also completed a year of study at the University of London before taking up a Graduate Proctor Fellowship at Princeton University. She further completed an MPhil in American Politics at Dundee University. Aspiring to be a writer/commentator on American politics, she now writes for UncoverDC.