CONGRESS
'Nothing is off the table': Supreme Court fight
could reshape the Senate
Democrats are vowing to hit back at Republicans if
they fill the vacant Supreme Court seat before January.
By MARIANNE
LEVINE, ANDREW DESIDERIO and JOHN BRESNAHAN
09/19/2020
07:40 PM EDT
Updated:
09/19/2020 08:24 PM EDT
https://www.politico.com/news/2020/09/19/rbg-supreme-court-replacement-fight-senate-418438
The Senate is moving toward a historic showdown that
may reverberate for years to come.
The looming
battle over President Donald Trump’s upcoming Supreme Court nominee to replace
the late Justice Ruth Bader Ginsburg is already turning into an ugly partisan
brawl, with Senate Democrats warning they’ll retaliate if they win control of
the chamber and White House on Nov. 3.
Even more
than the 2018 crisis surrounding Brett Kavanaugh’s nomination to the high
court, Democrats say the fallout from Senate Majority Leader Mitch McConnell’s
effort to quickly push through a new justice — who could then be confirmed this
year by the Senate — could lead to permanent consequences for the institution.
During a
Democratic Caucus call Saturday afternoon, Senate Minority Leader Chuck Schumer
told his colleagues “everything Americans value is at stake” and warned of
possible payback if Republicans fill Ginsburg’s seat before January.
“Let me be
clear: if Leader McConnell and Senate Republicans move forward with this, then
nothing is off the table for next year,” Schumer declared. “Nothing is off the
table.”
Schumer
also urged the caucus to emphasize the effect filling the vacancy would have on
health care, civil rights and other issues.
The
once-chummy Senate has sunk ever deeper into bitter partisanship over the
years, with each side blaming the other as the culprit. But every time senators
think things could not get any worse — after Robert Bork’s failed nomination,
or nuking the filibuster on nominations or the sexual assault allegations
against Kavanaugh — they soon find the institution can deteriorate a whole lot
more.
Some of
Schumer’s colleagues and progressive outside groups want the New York Democrat
to dismantle the legislative filibuster if Vice President Joe Biden, who has
signaled an openness to the idea, becomes president and they win control of the
Senate. Schumer hasn’t tipped his hand on the issue, but such a momentous
change in Senate rules would end a 200-year-old tradition and make the change
more like the House, an institution where the majority always wins.
Other
Democrats suggested the party should move to pack the Supreme Court with
additional justices in order to dilute the power of the conservative majority.
Sen. Ed Markey (D-Mass.) tweeted on Friday that if McConnell moves to fill
Ginsburg’s seat this year and Democrats win control of the Senate and the White
House, “we must abolish the filibuster and expand the Supreme Court.”
There has
even been talk in Democratic circles of having the House impeach any justice
placed on the high court by Trump and McConnell's maneuvers, although it would
still take a two-thirds vote by the Senate to remove that person from the
Supreme Court. Similar sentiments were floated by Democrats during the
Kavanaugh fight but went nowhere.
Sen. Chris
Murphy (D-Conn.) said he wasn’t yet convinced that McConnell will garner the
requisite 50 votes to move forward with a nomination, but asserted Democrats
should “play by the same rules” as Republicans have since taking over the
chamber six years ago.
“Every
single Senate Republican has a decision to make about what the future of the
United States Senate is going to look like,” Murphy cautioned. “I just think
they’re pushing the Senate into a very different place — a place where your
word means nothing, where honor means nothing, and it’s all about the power
politics of here and now.”
And all 10
Democrats on the Senate Judiciary Committee urged the panel’s chair, Sen.
Lindsey Graham (R-S.C.), not to consider any nominee for the vacancy until
after the next president is inaugurated, citing Republicans’ decision to block
Merrick Garland’s nomination to the Court eleven months before the 2016
election. But with Republicans in control of the chamber, there is little
Democrats can do to stop a nominee from being confirmed without at least four
GOP defectors.
“There
cannot be one set of rules for a Republican president and one set for a
Democratic president, and considering a nominee before the next inauguration
would be wholly inappropriate,” the Democrats wrote.
Senate
Republicans and the White House are ignoring the Democrats’ outrage, with GOP
leaders expressing confidence in their strategy. McConnell said Friday night
that the Senate would hold a vote on Trump’s nominee, though he didn’t specify
when. Trump tweeted Saturday morning that Republicans should select a new
justice “without delay,” making clear what he expects of GOP senators.
For his
part, Graham said Saturday that he “will support President [Trump] in any
effort to move forward regarding the recent vacancy created by the passing of
Justice Ginsburg,” citing Democratic treatment of Kavanaugh and former Senate
Majority Leader Harry Reid’s (D-Nev.) decision to nix the 60-vote threshold for
lower court nominees. (McConnell took it a step further and got rid of the
60-vote threshold for Supreme Court nominees in 2017.) Graham had said in 2018,
during Kavanaugh’s contentious nomination, that he would “wait until the next election”
if a vacancy opened on the high court in the last year of Trump’s presidency
this far into the election season.
Sen. Ron
Johnson (R-Wis.), who has been leading a partisan investigation designed to
politically damage Biden, insisted a confirmation vote before Election Day
“shouldn’t have any impact whatsoever” on the institution.
“Could the
Democrats become more partisan when it comes to judicial nominees?” Johnson
asked. “Democrats will blow it way out of proportion, they will completely
politicize this but we have a Republican president, there’s a Supreme court
vacancy, there’s a Republican Senate. ... A confirmation vote is completely
appropriate.”
Some Senate
Republicans also argue that Democrats would act no differently.
“I don’t
know how it can become more partisan than what it is,” said Sen. Mike Braun
(R-Ind.), adding that “if the shoe was on the other foot,” Schumer would put a
Democratic nominee on the floor. “I don’t think that it would be any
different.”
The
spotlight is already shifting to the handful of Republican senators who could
decide whether Trump’s pick to replace Ginsburg. Sens. Susan Collins of Maine,
Lisa Murkowski of Alaska and Mitt Romney of Utah will face enormous pressure
over the nomination — as will some retiring senators that Trump won’t be able
to touch soon. Collins on Saturday said the Senate should not vote on a nominee
before the Nov. 3 election and almost immediately caught flak from Trump, who
told reporters he “totally” disagrees with her.
The issue
is already spilling over into key Senate races in North Carolina and Iowa, with
Republicans vowing to support an immediate vote for whomever Trump nominates
and their Democratic challengers demanding the Senate hold off until next year.
Sen. Thom
Tillis (R-N.C.) vowed Saturday to support whoever Trump nominates without even
knowing who that is, a blank check that party leaders will cash shortly.
“There is a
clear choice on the future of the Supreme Court between the well-qualified and
conservative jurist President Trump will nominate and I will support, and the
liberal activist Joe Biden will nominate and Cal Cunningham will support, who
will legislate radical, left-wing policies from the bench,” Tillis said in a
statement, referring to his Democratic opponent.
Cunningham,
in response, noted that early voting has already started in North Carolina, and
voters “deserve that opportunity to have their voices heard, and then, it
should be up to the next president and next Senate to fill the vacancy on our
Court.”
CONGRESS
The left channels its fury toward McConnell
Progressives plan to harness "the wrath of
millions of grieving, pissed-off, motivated volunteers" against efforts to
replace Ruth Bader Ginsburg with a high court nominee picked by Donald Trump.
By HOLLY
OTTERBEIN
09/19/2020
09:07 PM EDT
https://www.politico.com/news/2020/09/19/the-left-channels-its-fury-toward-mcconnell-418542
Less than
two hours after the news of Supreme Court Justice Ruth Bader Ginsburg’s death —
and Senate Majority Leader Mitch McConnell’s vow to try to replace her with a
nominee picked by President Donald Trump — the progressive movement was
activated.
Liberal
activists convened an emergency call at 9:30 p.m. Friday to chart out the
battle ahead. According to people on the line, leaders of the anti-Trump group
Indivisible, abortion rights organization NARAL, and court advocacy nonprofit
Demand Justice called for a united front: Oppose any confirmation before
Inauguration Day. They talked over plans to hold vigils for Ginsburg, and some
people briefly discussed the idea of packing the court.
At the same
time, Democrats were smashing donation records on the small-donor site ActBlue,
and hundreds of mourners were spontaneously gathering on the steps of the
Supreme Court.
It marked
the beginning of a mobilization effort designed to harness the grassroots fury
ignited by the GOP’s response to Ginsburg’s death — an opening flurry of
activity that Democrats hope will fuel their takeover of the White House and
Senate in November’s election.
“This
illustrates forcefully that justice is on the ballot in each of those races for
U.S. Senate,” said John Walsh, 2020 campaign manager for Sen. Ed Markey
(D-Mass.). “We need to succeed, and fulfilling Justice Ginsburg’s wish will be
a motivation for millions of people to vote and talk with their friends about
the election.”
In the past
few years, Democrats have grown increasingly concerned about the composition of
the Supreme Court, an issue that’s long been the province of Republican voters.
But the battle over the confirmation of Justice Brett Kavanaugh, along with
McConnell’s refusal to hold a vote on President Barack Obama’s nominee, Merrick
Garland, in 2016, helped to change that.
A recent
poll by the Pew Research Center found that 66 percent of Joe Biden supporters
said Supreme Court appointments were very important to their vote in the
presidential election, compared with 61 percent of Trump backers — a reversal
from 2016, when Trump fans saw them as more critical.
Liberal
groups are looking to use that energy to ramp up pressure against Republican
senators to break with McConnell, particularly those who are in competitive
races or who have said in the past that they would not confirm a nominee before
Inauguration Day. Most see GOP Sens. Lisa Murkowski of Alaska, Cory Gardner of
Colorado and Mitt Romney of Utah as being the most promising after Sen. Susan
Collins of Maine, who said Saturday that the appointment to the Supreme Court
should be made by the president who is elected on Nov. 3.
Demand
Justice is launching a $10 million ad campaign in an effort to stop Republicans
from filling Ginsburg's seat before the presidential inauguration in January.
Women’s March is planning big protests. Indivisible has mobilized its members
to call Republicans’ offices in the Senate and demand that they “refuse to hold
any hearings or confirm any new justices until the next term begins,” according
to a prepared script.
The group
also said it already has campaign infrastructure in place seeking to oust 12
Senate Republicans, which was originally created in response to the Senate’s
impeachment acquittal of Trump, that it plans to utilize in the weeks ahead.
“If the
Senate Republicans continue to follow McConnell on this,” said Indivisible
press secretary Emily Phelps, “they're going to be the target of the wrath of
millions of grieving, pissed-off, motivated volunteers from all 50 states.”
Democratic
activists are particularly incensed by the fact that McConnell and other GOP
senators argued in 2016 that, rather than vote on Garland, Americans should be
able to weigh in on the next Supreme Court nominee in the upcoming presidential
election. In key battleground states, local left-wing organizations are also
looking to push Republicans, such as Pennsylvania Sen. Pat Toomey, to hold off
on confirming a new justice by turning their own words on them.
“Our plans
around mobilization are still in formation, but we do intend to remind Sen.
Toomey that he blocked the confirmation of Merrick Garland on the grounds that
in an election year, ‘it makes sense to give the American people a more direct
say in this critical decision,’” said Hannah Laurison, executive director of
the progressive group Pennsylvania Stands Up.
But
Democrats face a formidable challenge in trying to pick off Republicans, even
those in tight races. Sen. Lindsey Graham (R-S.C.), who is tied with Democratic
opponent Jaime Harrison according to a recent poll, has already signaled that
he supports Trump nominating a justice, despite the fact that in 2016 he said
the Senate shouldn’t fill vacancies in a presidential election year.
The
pressure campaigns aren’t limited to Republicans. In a year in which
progressives ousted a handful of incumbent House Democrats, a former aide to
Sen. Bernie Sanders (I-Vt.) called for a Democrat to immediately announce that
they will launch a 2022 primary challenge against Minority Leader Chuck
Schumer. The goal: Make him grind the Senate to a halt in hopes of somehow
staving off a confirmation.
“Schumer
needs to face maximum pressure every single day to use all possible power that
his caucus has — and it has power — to stop a Trump appointment,” wrote David
Sirota, Sanders’ speechwriter for his 2020 presidential campaign, and
progressive activist Andrew Perez in a newsletter. “Not just pressure as in
phone calls and protests — pressure as in you-will-be-voted-out-of-office
pressure.”
Along with
contacting Republicans, Indivisible members are also calling Senate Democrats’
offices to urge them to slow down the business of the Senate in hopes of
blocking a future nominee.
Demand
Progress, a left-wing group, said 50,000 people have sent emails to Democratic
and Republican senators around the country asking them to “block every motion,
force every bill to be read in full, and use a wide range of parliamentary
tactics to shut down the Senate between now and January, when new Senators and
the president are inaugurated.”
Democrats
are largely powerless to stop the nomination if Republicans have 50 votes: They
can try to put on the brakes, but judicial confirmations run on a separate
calendar and McConnell controls the floor. Progressive activists and former
Senate aides insist they have leverage to drag it out, though.
“All
options have to be on the table,” said Sen. Brian Schatz (D-Hawaii), referring
to efforts to block the confirmation. But asked for details, he declined to
elaborate.
In the wake
of Ginsburg’s death, left-wing groups are also working to boost support for the
campaign to pack the Supreme Court by expanding the number of justices. Once a
fringe idea, the cause picked up steam in the Democratic presidential primary
when several candidates said they were open to it. Biden, who has opposed the
proposal, is likely to face increased pressure from liberals to change course.
Already,
some Democrats are expressing support for adding seats to the court.
Rep. Jerry
Nadler, chair of the House Judiciary Committee, tweeted that if Republicans
“were to force through a nominee during the lame duck session — before a new
Senate and President can take office — then the incoming Senate should
immediately move to expand the Supreme Court.”
Meanwhile,
in a call with Senate Democrats Saturday, Schumer said, “nothing is off the
table for next year” if Republicans move forward with their plan.
"Court
expansion is on the map in a way that it’s never been before,” said Aaron
Belkin, director of Take Back the Court, a group leading the charge for
court-packing. “Part of that is because [McConnell] stole the court in 2016,
and the fact he’s now pledging to violate the ‘rule’ he used to steal the court
in the first place is, of course, electrifying the opposition and underscoring
the need to rebalance the court so this doesn’t happen again.”
Given the
obstacles they face in trying to stop McConnell, however, progressives had not
effectively prepared for this moment, said a person involved with one liberal
group opposing the confirmation.
“There’s no
clear strategy,” the individual said. “It’s another one of these moments where
if we were the other side, we would have had much more of a plan in place.”
But many
Democrats said the upcoming Supreme Court battle is making their voters even
more motivated than they were before, which could pay dividends in November.
“Enthusiasm
is through the roof,” Schatz said. “Nothing motivates voters like righteous
anger.”
Laura
Barrón-López contributed to this report.
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