Democrats Have Made It Easier for Republicans to Confirm Barrett

Lisa Murkowski, R-Alaska, announced that she intends to confirm Amy Coney Barrett to serve on the Supreme Court, reversing her prior pledge to vote no on her confirmation before Election Day. 

Murkowski blamed Democrats, in part, for her about-face on Barrett. While she conceded that Barrett’s confirmation will almost certainly exacerbate the nation’s political dysfunction, Murkowski also argued that Democrats’ efforts to keep Republicans from filling the vacancy created by the death of Justice Ruth Bader Ginsburg will have the same effect. Specifically, she cited Democrats’ threats to eliminate the legislative filibuster and expand the Supreme Court’s size as spurring her to reconsider her position on Barrett.

Murkowski’s change of heart here suggests that Democrats’ strategy to prevent Barrett’s confirmation backfired. That is, their efforts appear to have made it easier for Republicans to confirm Barrett, not harder.

The Democratic Strategy

Contrary to the views expressed by some commentators on the Barrett nomination, Democrats are not powerless in the debate. They have several procedural tools at their disposal to boost their chances of preventing Barrett’s confirmation. Those tools can be divided into two general categories- tools that delay the confirmation process and tools that expose Republicans’ divisions regarding the confirmation process. Succeeding in their effort requires Democrats to think strategically about using these tools to achieve precisely stated goals.

Yet strategic thinking and precise goals are noticeably absent in prior analyses of Democrats’ procedural options in the Barrett debate. Those reports highlight procedural tools like Republicans’ unanimous consent requests to expedite the Senate’s business, denying Republicans a quorum in the Judiciary Committee and on the Senate floor, boycotting Barrett’s confirmation hearings altogether, postponing the committee business meeting to report Barrett’s nomination to the full Senate, and objecting to the Senate recessing while forcing votes on motions to adjourn. Democrats also made threats to eliminate the filibuster and expand the number of justices serving on the Supreme Court (something most Republicans believe they will do regardless of whether the Senate votes to confirm Barrett before Election Day).

Democrats appear to be using these tools indiscriminately and without a broader strategy to make their efforts effective. For example, Democrats boycotted last week’s vote in the Judiciary Committee to report Barrett’s nomination. Their decision to do so was telegraphed nearly two weeks earlier by Minority Leader Chuck Schumer, D-N.Y. And Richard Blumenthal, D-Conn., argued at an earlier Judiciary Committee that the time allocated to debate Barrett in the committee was insufficient to thoroughly vet her and then made a motion to postpone her nomination indefinitely.

In both examples, Democrats’ actions undermine their criticisms about the process. Their actions suggest that Democrats have prejudged Barrett’s candidacy to serve on the Supreme Court, which indicate that no process will address their concerns.

A Counter-Productive Effort

But Murkowski’s announcement demonstrates that Democrats should not use their leverage indiscriminately and without a broader strategy to guide their efforts. This is because doing so helps unify Republicans (instead of dividing them) in support of Barrett’s confirmation. It could also encourage voters to see Democrats as acting unreasonably in the process.

However limited, procedural tools will be ineffective if Democrats do not use them strategically to redefine the debate’s dominant narrative. This is because those tools do not empower Democrats to delay Barrett’s confirmation in the Judiciary Committee or on the Senate floor. For example, Republicans should produce a quorum with little difficulty, given the confirmation debate’s high-stakes nature. The two Republican senators who have announced their opposition to confirming Barrett before Election Day (i.e., Susan Collins, R-Maine, and Murkowski) are likely to help the GOP produce a quorum in the face of a Democratic boycott of the process. In particular, Collins is unlikely to miss a quorum call given that she has perfect attendance when the Senate votes. 

And Democrats can’t prevent the process from proceeding merely by objecting to Republicans’ requests to recess the Senate. This is because a simple majority of senators can recess and adjourn the Senate on a non-debatable motion.

Instead of using parliamentary procedure indiscriminately to delay the process, Democrats can improve their odds in the debate by changing the environment in which senators will eventually cast their votes on whether to confirm Barrett. Changing the environment requires Democrats to use parliamentary procedures to delay the confirmation process in a targeted fashion while reasonably participating in it. Democrats’ goal should be to make Republican senators appear unreasonable in their constituents’ eyes when they override Democrats commonsense requests for more time to review Barrett’s judicial/legal record.

Acknowledging that they can win in this debate requires Democrats to state their goal more precisely. Specifically, they should qualify their current goal – to prevent Barrett’s confirmation – so that it becomes – to stop Barrett’s confirmation before Election Day. Stating their intent more precisely gives marginal Republicans a way to join Democrats (or be pressured by their constituents to join them) without declaring blanket opposition to Barrett (and, by extension, to President Trump). Stating their goal precisely also makes Democrats appear more reasonable in the eyes of voters. And a more precise plan limits the scope of the debate to three weeks, emphasizes the uncertainty associated with reviewing a Supreme Court nomination at that time. It forces Republicans to defend a truncated timeline, which is unprecedented in the modern era. Articulating their goal in this way better positions Democrats to assess how and when to use their procedural leverage to redefine the narrative in the confirmation debate.

Notwithstanding these considerations, Democrats’ current emphasis on the long-term policy consequences of Barrett’s confirmation for the Affordable Care Act and the illegitimacy of the process makes it harder for them to win. Their efforts will instead make it easier for Republicans to support Barrett. 

Democrats Had Other Options

Democrats can better position themselves to prevent Barrett’s confirmation by staking their opposition in the debate on the process. A process-oriented posture makes it easier for marginal Republicans to switch sides by allowing them to avoid taking a definitive position on the nominee and the president who nominated her. The posture also casts Democrats as reasonable participants in the debate who are primarily concerned about Republicans’ unprecedented effort to truncate the confirmation process.

After indicting the process and forcing Republicans to override their objections to it, Democrats can then pivot to boycotting the debate. Democrats’ decision to do so will carry greater weight with marginal Republicans and voters if they believe Democrats made an earnest effort to make the process work. 

Only at that point will Democrats’ efforts to boycott the committee business meeting have an advantageous effect on the confirmation process’s trajectory. This is because Republicans can change the rules. Democrats can’t prevent that. But they can make it politically damaging for them to do so.

Democrats can further increase their odds of winning by making Republicans ignore their objections in a way that affirms them. Democrats will pressure marginal Republicans in the full Senate if they engage in the committee process earnestly without being seen as prejudging Barrett. They will help their cause if they ask for more time to review her record in the committee. Republicans will likely refuse their requests, but forcing them to do so affirms Democrats’ preferred narrative – the process is a sham, and Republicans will do whatever it takes to confirm Barrett.

The Takeaway

Democrats’ maneuvering up until now in the Barrett debate suggests that Republicans should not be worried about her confirmation next week.

This post originally appeared on Legislative Procedure.