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Democrats focus on Supreme Court messaging, not on stalling the Senate

Limited procedural options exist, but Democrats are unlikely to use them

Kelli Midgley of Baltimore holds up her “What Would RBG Do?” sign at the U.S. Supreme Court on Saturday.
Kelli Midgley of Baltimore holds up her “What Would RBG Do?” sign at the U.S. Supreme Court on Saturday. (Bill Clark/CQ Roll Call)

Senate Republicans plan to move ahead with a Supreme Court nomination after Americans have already started voting, but Democrats appear content to respond with a messaging exercise.

Senate Majority Leader Mitch McConnell said in a statement Friday evening that a vote on President Donald Trump’s nominee to succeed the late Justice Ruth Bader Ginsburg would occur during the current Congress, but he didn’t specify whether that would be before or after the election in November. Ginsburg died Friday of complications from metastatic pancreatic cancer. She was 87.

[Photos: Washington mourns death of Supreme Court icon Ruth Bader Ginsburg]

Sen. Susan Collins, a Maine Republican running for reelection in a race rated a Toss-up by Inside Elections with Nathan L. Gonzales, said in a statement Saturday that while she thought the Judiciary Committee could begin processing paperwork from Trump’s nominee once the president announces, the floor consideration should wait for the outcome of the November election.

“In fairness to the American people, who will either be re-electing the President or selecting a new one, the decision on a lifetime appointment to the Supreme Court should be made by the President who is elected on November 3rd,” Collins wrote.

That did not sit well with Trump.

“I totally disagree with her. We won,” he told reporters Saturday.

Shortly before Ginsburg’s death, Sen. Lisa Murkowski, R-Alaska, made comments to Alaska Public Media that were similar to what Collins stated, but it would take four Republicans to stop a nomination from advancing “without delay,” as Trump phrased it Saturday on Twitter.

Conservatives are arguing that there is no reason why Trump and McConnell should not move forward immediately, and across the aisle, there appeared to be no immediate appetite from Senate Minority Leader Charles E. Schumer or members of the Democratic Conference to try to grind the chamber’s limited agenda to a halt, although they have tools at their disposal.

Multiple Democratic sources were asked about what might be done procedurally or substantively, and all who responded offered some variant of what Schumer told members of his conference in a Saturday afternoon call.

“Our No. 1 goal must be to communicate the stakes of this Supreme Court fight to the American people,” the New York Democrat reportedly said. “Let me be clear: If Leader McConnell and Senate Republicans move forward with this, then nothing is off the table for next year. Nothing is off the table.”

The elimination of the supermajority requirement to break filibusters of Supreme Court nominees has left the minority party with limited procedural options, but that’s not to say there are no options other than trying to persuade Republicans that the political consequences of pushing ahead with a Trump nominee could outweigh the benefits.

Since the chamber largely runs on unanimous consent, any Democratic senator could, for instance, gum up the works of the Senate by objecting to everything else McConnell wants to do, forcing Republicans who are up for reelection to spend additional time casting procedural votes.

Despite grumbling from McConnell and other Republicans who claim the Democrats have mounted too many obstructions to Senate business, the Democratic minority has generally gone along with unanimous consent agreements, setting up predictable schedules of votes (especially on Trump’s many judicial nominations) and other motions such as adoption of the journal of proceedings and avoiding the morning hour of debate.

Democrats could also seek to enforce a Senate rule barring committees from meeting past the first two hours of a day and objecting to all kinds of routine business, from the naming of post offices to the declarations of holidays.

That might not be a wise strategy if the goal is actually to get at least two more Republican senators to join in the effort to stop a late-September Trump Supreme Court nominee from being confirmed before the presidential election. However, it’s not clear whether such moves are even on the chessboard.

Senate Judiciary Chairman Lindsey Graham, R-S.C., confirmed Saturday that he planned to move forward with a Trump nomination, citing the Democratic Party’s handling of the debate over the nomination of Justice Brett M. Kavanaugh as a motivating factor.

“I will support President @realDonaldTrump in any effort to move forward regarding the recent vacancy created by the passing of Justice Ginsburg,” Graham tweeted.

Oral arguments in a case out of Texas that could upend the 2010 health care law are scheduled for Nov. 10, and that’s expected to be a key part of the Democratic messaging, according to a Democratic aide.

And the Democratic Senatorial Campaign Committee was highlighting the risk to the 2010 law in its initial Supreme Court messaging on Saturday.

“Senate Republicans were already on defense across the country for voting to gut protections for people with pre-existing conditions and plowing ahead with the dangerous partisan lawsuit to dismantle those coverage protections entirely,” DSCC spokeswoman Helen Kalla said in a statement. “The Supreme Court’s handling of this lawsuit will affect health care coverage for Americans across the country, and that is what’s at stake.”

The Supreme Court is set to consider whether the 2010 law’s “individual mandate,” which requires most Americans to have health insurance, is severable from the rest of the law. Upholding the lower court, which held that the mandate is not severable, could result in approximately 20 million people risking the loss of insurance.

There was no indication that the debate over the continuing resolution to keep the government funded past Sept. 30 could be imperiled by Ginsburg’s death and the coming nomination battle.

That is at least in part because there was no evidence of Democrats’ trying to short-circuit the Supreme Court’s handling of the health care law case. One way they could do that is by clarifying that the mandate is severable by inserting language in the CR.

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