Earl Ofari Hutchinson
Trump has made it crystal clear that his SCOTUS picks will be reincarnations of the late hard-line late Antonin Scalia. He was as good as his word with his first pick Neil Gorsuch. His majority vote to nail abortion, union dues, and approve Trump’s Muslim travel ban was terrorizing proof of that. He wasted no time in telling one and all that he’ll pick from a list of 25 names for a replacement for retiring SCOTUS justice Anthony Kennedy. The list has been carefully culled by the hard-right Heritage Foundation. At first glance, Trump seemingly holds all the political cards in ramming his pick through.
The initial battle will be in the Senate Judiciary Committee where Democrats will use every procedural tactic to stall a confirmation vote. That will buy some time. But the nomination will eventually go to the Senate for a vote. It only takes a simple Senate majority to confirm. Even if the 49 Senate Democrats vote against the nominee, the GOP has the 50 votes plus one with the almost certain vote of VP Mike Pence if needed to get the magic 51 total. The only weapon that Democrats supposedly have to halt or at least slow down Trump’s plopping a Scalia clone on the Supreme Court is the filibuster.
But that’s shaky at best since Senate Majority Leader Mitch McConnell has already torpedoed that when he summarily cut off debate on Gorsuch; the so-called “nuclear option.” OK, but the Democrats are far from impotent when it comes to fighting Trump even with that roadblock. The Senate is one of the world’s most elitist, insular, clubby institutions. To keep it that way, the Senate has a telephone book size set of some of the most convoluted and arcane rules ever devised by any legislative body. The idea is to preserve its exclusive, good ole boy’s status. However, buried in those rules are powerful weapons that the Democrats can wield to dither, dodge, duck, and even derail at least for the moment Trump’s choice. McConnell will step in to stop them any Democratic stall maneuvers. But here are the things they can try anyway.
They can still try a filibuster. It only takes one Senator to keep the debate on a court nominee going until he or she runs out of verbiage. Debate on an odious Trump appointee can continue for up to thirty more hours and even this can be extended subject to another three-fifths vote to end it. But even this might not end it. When confirmation is put to a voice vote, a Senator can challenge the tally and demand that the names of who voted for what be put on paper. It must be granted if it is seconded by one-fifth of the Senators present.
A single Senator can block a motion from heading to the Senate floor for a vote simply by telling the Democratic Party leadership that he or she intends to take the action. It can be a secret hold or a public hold.
A Senator can also gab. There is generally no formal limit on how long the Senator may speak. The same Senator can double down the next day with again one or two speeches on the same subject.
This doesn’t happen very often. However, when it does the Senate chamber is closed. The public and the media are barred, and so is anyone else not sworn to secrecy. This is usually reserved for sensitive issues such as national security matters, or private communications from the President. Any Senator can call for a closed session. The only thing needed is a second to the motion. This is strictly a tactic to extend a confirmation hearing or discussion of a bill or motion. It buys time, and time with anything Trump proposes is worth its weight in political gold.
Democrats can also force a Trump pick to go through 30 hours of debate on his or her qualifications, background, and fitness for the post. It is jarring, acrimonious, and can keep the heat and public attention on the dubious qualifications and nefarious views of the choice. Again, McConnell will step in if any of these tactics are used to stop them in their tracks. But they could buy time
The X factor in all of this is not the tactics the Democrats have at their disposal but the Democrats. A handful of Red State Democratic senators voted to confirm Gorsuch. The pressure will be on them again to do the same with this Trump pick. Still, the GOP gave Democrats a template on how to use every Senate ploy to hector, harass, stall Trump’s SCOTUS nominee. The question is do they have the stomach to do what the GOP did with Obama and use the labyrinth rules of the Senate to check Trump? If not, we’ll have yet anther Scalia clone on the bench for decades to come.
Earl Ofari Hutchinson is an author and political analyst. He is the author of the forthcoming Why Black Lives Do Matter (Middle Passage Press). He is a weekly co-host of the Al Sharpton Show on Radio One. He is the host of the weekly Hutchinson Report on KPFK 90.7 FM Los Angeles and the Pacifica Network.