Progressives call on Schumer to step up fight over Trump's Supreme Court pick

Some are frustrated at a willingness to play along with the GOP timetable.

October 6, 2020, 1:53 PM

Activists have begun to ramp up pressure on Senate Democratic leaders to block President Donald Trump’s new Supreme Court pick as the Senate moves to evaluate and vote on her nomination.

The death of Justice Ruth Bader Ginsburg and Senate Majority Leader Mitch McConnell’s promise to fast-track the president’s nomination to fill her seat has reignited long-brewing debates in the Democratic Party about how best to respond to Senate Republicans routine norm-busting and highly partisan way of conducting business in the Senate. Despite health concerns and an outcry from Democratic leaders over the weekend, Senate Judiciary Chair Lindsey Graham announced that formal hearings for the confirmation of Judge Amy Coney Barrett will begin next Monday.

But the outbreak of COVID-19 at the White House has raised new questions about whether Republicans can, in fact, proceed with a quick confirmation. Two GOP members of the important Judiciary Committee -- North Carolina Sen. Thom Tillis and Utah Sen. Mike Lee -- tested positive for coronavirus and headed into isolation, as did a third member of the Republican conference -- Sen. Ron Johnson. The Senate does not allow remote voting and with two other Republicans already signaling their intention to oppose Coney Barrett’s nomination before the election, it remains uncertain when exactly McConnell will have the numbers of Senators he needs in person for a full floor vote.

Progressives thus far have been frustrated at more moderate Democrats who, until last week, had largely seemed willing to conduct usual business around her nomination.

“I wish they sounded more like some of the most powerful politicians in the world,” said Karthik Ganapathy, a Democratic strategist who has worked for Sen. Bernie Sanders and the ACLU. He pointed to the fight two years ago over repealing the Affordable Care Act, which ended in a surprise with the late Sen. John McCain crossing the aisle and voting with Democrats.

“Progressives want to see ... that our people are fighting and doing everything they can. They want to see that they are pissed off and an acknowledgment that everything is on the line here. This is the time you go to the mat and leave it all on the floor... even if you’re not sure you can win,” Ganapathy said.

The political advocacy organization, Center for Popular Democracy Action, released an online ad including several progressive leaders Monday calling on Senate Minority Leader Chuck Schumer to “do everything in [his] power” to stop the confirmation of Barrett, including refusing to adjourn session in the Senate and denying any usual and expected bipartisan agreements that allow the Senate to conduct business as usual.

Senate Minority Leader Chuck Schumer (D-NY) participates in a news conference at the Capitol, Oct. 1, 2020.
Erin Scott/Reuters

Advocates argue that Schumer could slow the overall Senate calendar by keeping the floor in session whenever possible, though several sitting members of Congress have pushed back and said Republicans really control the timing.

Before coming before the full Senate, the Senate Judiciary Committee will hold hearings and likely vote on the nomination.

Some Democratic advocates have floated the idea of Democratic senators on the committee boycotting the hearing vote since the rules read that two members from the minority must be present to establish a quorum to conduct business.

“You have a responsibility to be looking for every opportunity to gum up the works to delay, disrupt and delegitimize this process... you should be publicly committing to using every procedural tool to stop this nomination,” the video from Center for Popular Democracy Action says.

Republicans Lee and Tillis, who are currently isolating after testing positive for COVID-19, could also be needed in person for the committee vote.

Still, others on Capitol Hill argue that Graham and McConnell could likely waive the current rules if they wanted.

Sen. Majority Leader Mitch McConnell (R-KY) speaks to the media after a lunch with Republican Senators, on Capitol Hill, Sept. 30, 2020.
Joshua Roberts/Reuters

Last week, Schumer did make a point of utilizing some procedural tools at his disposal to slow down the Senate calendar. He filed a rare cloture motion on a bill, which called for the Trump administration to stop its support of lawsuits to overturn the Affordable Care Act and forced Republicans to vote on an issue highly pertinent to the fight over the Supreme Court nomination. The high court is set to hear oral arguments on a case about the legality of the so-called Obamacare law on Nov. 10, right after Election Day.

Progressive leaders have applauded those Democrats who have publicly said they will not meet with Barrett, but many in their party’s leadership still plan to. Speaking to ABC's George Stephanopoulos, Democratic Senate Whip Dick Durbin, D-Ill., threw cold water on the idea that Democrats could slow the process in any meaningful way through delay tactics alone.

Still, some are holding out hope.

“I am not a Senate tactician, let’s be clear, but I’m not convinced by this idea there is nothing to do. There are things to do, so do them, any of them, all of them. I want people who have the levers of power in this fight to pull those levers,” Ganapathy told ABC News in response to Durbin.

Demand Justice, another Democratic political advocacy group headed in part by Brian Fallon, the former national press secretary for Hillary Clinton’s presidential campaign, has focused instead on targeting vulnerable incumbent Republicans up for reelection through television ads and local pressure on the ground in battleground states.

The group says it wants to remind Republicans that the average voter believes the vacancy should be filled after the next election. In the latest ABC News/Washington Post poll, Americans by nearly a 20-point margin said they thought the next justice of the U.S. Supreme Court should be decided after this election. At the same time, the majority of Americans also opposed increasing the size of the high court -- an idea that Biden has refused to take a position on but which could help shift the balance of power on the court should Barrett be pushed through before Election Day.

Christopher Kang, co-founder and chief counsel for the organization, told ABC News he thought Democrats were doing the right things so far and that procedural delay tactics were best reserved for the days and weeks closer to the final vote.

“We have to be realistic about the options that Democrats have, and like what is achievable here,” Kang told ABC News. “I think the way that we're able to stop this nomination is similar to how the Affordable Care Act was saved. And that was people picking up the phone .... making clear to their elected leaders what's at stake and what the impact would be and what the political consequences would be if they voted the wrong way.”

Kang’s organization is one of a growing list of Democratic advocacy organizations pushing the idea of Democrats expanding the Supreme Court should their party retake majority control of the Senate and the White House.

Kang pointed to the fact that Democratic presidential nominee Joe Biden had not directly taken the idea of expanding the court off the table, and he argued that if Barrett is in fact confirmed more Democrats might support the idea of adding members to the court.

He said the fact that Trump, who lost the popular vote, would have nominated three justices with lifetime appointments and that the court could continue to side with a minority political opinions would help his case.

“One of the things that's been holding Democrats back from supporting court expansion is they think it will make the court less legitimate or more political. I think that if Republicans exercise this raw political power to steal a second Supreme Court seat, within four years, the legitimacy of the Supreme Court will have hit rock bottom, there's no place lower to go. And the only way to actually preserve or restore any legitimacy will be to add seats,” Kang said.

For many Democrats like Kang, Republicans’ efforts to fill Ginsburg's seat while the election is ongoing is yet another nod to their belief that institutions in Washington are fundamentally broken and undemocratic.

During the Democratic Party primary many candidates rolled out plans for big-ticket items aimed at rebalancing power in Washington, as they would say, including proposals for term limits on the Supreme Court, abolishing the Electoral College, making Washington, D.C., and Puerto Rico states (likely to give Democrats two more safe Senate seats) and the end of the legislative filibuster to pass bills in the Senate with a simple majority. The call to prioritize government reform was heard audibly at Sen. Elizabeth Warren events, when the crowd would chant for “structural change.”

Biden, of course, won that primary by pitching a return to normalcy, not upheaval.

Amanda Hillman, a 35-year-old Democratic voter in Minneapolis, Minnesota, voiced an internal conflict commonplace among many Democratic voters to ABC News. She wrote on Facebook last week that Trump losing the popular vote and the Senate’s rush to fill the Supreme Court vacancy felt “unreasonable and unethical” but that she still longed for cooler heads and appreciated Biden’s bipartisan approach.

“The cynical part of me says, ‘As long as we continue to be nice, we will be played as suckers,’ but I don’t think there is a good end game there,” she said on the phone. “I appreciate that Joe Biden’s message has been about integrity and decency and let’s step back from the edge... Biden might be vanilla ice cream, but vanilla is still around.”

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