Democrats Could Win By Losing On The Supreme Court

Legislators are debating how to fight for Obama's nominee without becoming obstructionist.
Senate Minority Leader Harry Reid (D-Nev.), left, meets with President Barack Obama's Supreme Court nominee Merrick Garl
Senate Minority Leader Harry Reid (D-Nev.), left, meets with President Barack Obama's Supreme Court nominee Merrick Garland, right, on Capitol Hill on March 17. Democratic senators have not been able to secure a vote on Garland.

WASHINGTON -- Democrats have a quandary when it comes to their battle to get the Senate to vote on a Supreme Court nominee: How hard should they push, and what, really, can they do?

Party legislators have offered up weeks of outraged floor speeches and dramatic media events in front of the high court, shifting public opinion their way, but Republicans have barely budged. Just two of them have agreed that President Barack Obama's selection to replace the late Justice Antonin Scalia, Merrick Garland, should get hearings. Only about a dozen even want to meet the judge.

While Democrats have relentlessly targeted Judiciary Committee Chairman Sen. Chuck Grassley (R-Iowa), who faces re-election this year, the infamously stubborn Iowan took to the Senate floor Thursday to declare the pressure a complete failure.

“You can almost hear the ruby slippers on the other side clicking while they wish this narrative they describe about us on this side of the aisle were true,” he said. “The fact is -- the pressure they have applied thus far has had no impact on this senator's principled position.”

That leaves Democrats facing an interesting stalemate. While they're losing their battle to sway Grassley and Senate Majority Leader Mitch McConnell (R-Ky.) when it comes to a nominee, the party is winning the public relations war -- especially in swing states like Ohio, Illinois and Wisconsin, where prognosticators see Democrats' electoral chances improving.

In effect, Democrats are in the unusual position of being able to push for one thing they want in the confirmation of Obama's third Supreme Court pick, and, failing that, boost their chances of winning something else they want: control of the United States Senate next year.

The question is how to manage that tension, especially on the Garland front. When it comes to getting a vote for the nominee, legislators are mostly stuck with a grab bag of obscure Senate procedures that stand very little chance of success, and which few people -- including the lawmakers themselves -- really understand.

"I don’t have any idea how we do it procedurally. I don't know how you do any of that, I just think Republicans should do their job on it, period," said Sen. Sherrod Brown (D-Ohio).

The truth is Democrats don't really have a lot of options if Grassley doesn't hold hearings and McConnell doesn't call a vote.

They can try to offer motions to bring up a privileged item of business, but it must be agreed to by unanimous consent, something that is essentially impossible given the number of Republicans opposed to Garland’s nomination. Or, they can try an even more obscure tactic of attempting to have a "morning hour" of business when motions can be offered.

(For more information on the parliamentary procedures, read recent reports from the Congressional Research Service here and here.)

Perhaps the likeliest route, and arguably the most effective, would be a discharge motion, which would allow Democrats to bypass the Judiciary Committee. Any senator can put forward the motion that the committee be discharged, but it can only be submitted when the Senate is in “executive business.” Forcing a vote on the discharge resolution would require a simple majority, but on final passage it would need a majority, or 60 senators. Democrats only have 46 votes.

At this point, the best Democrats can hope for is some kind of symbolic vote in relation to Garland, and perhaps some fresh headlines. But their poor chances of success show why discharge motions and the other steps are so rarely tried, and why few of the 11 Democrats who spoke to The Huffington Post even knew about the procedures.

“I thought discharge petition was a House method,” said Sen. Sheldon Whitehouse (D-R.I.) “I haven’t thought of that.”

Still, many of them said they were getting to the point where they'd be willing to try just about anything.

“I think we should do whatever we can to do a vote,” said Sen. Bob Casey (D-Pa.). “When people are ignoring the Constitution, we should try something.”

“I don’t have an opinion on how we do it, I just think we keep pushing, keep pushing, keep pushing because this matters so much,” Brown said.

"I think we should be looking at all the options we have to try to encourage action,” said Sen. Jeanne Shaheen (D-N.H.).

But there are potential pitfalls for Democrats if they embark on a campaign of gimmicky votes, or if they try to take a page from Republican senators who have held up unrelated legislation to try and win concessions. Indeed, Senate Minority Leader Harry Reid (D-Nev.) has vowed repeatedly that he would not turn his Democrats into an "obstruct caucus.“

Beyond that, Democrats seem to still be searching for a strategy, although they remain intent on trying to keep some sort of pressure on the GOP.

“I’m still going to hold out hope that Republicans are willing to have a hearing since no party has ever refused a nominee,” said Sen. Claire McCaskill (D-Mo.)

“My sense is, and I talked with a lot of people at home, that the Constitution never envisioned having a Senate filled with ostriches,” said Sen. Ron Wyden (D-Ore.) “So I want to get on with the process.”

Sen. Chris Murphy (D-Conn.) wouldn’t opine on whether Democrats should be more aggressive in forcing a vote, instead offering that the “momentum” is moving in their favor.

“More and more Republicans are figuring out that blocking a vote is bad politics, so let’s let that momentum continue for the time being,” he said.

One thing is certain: Whether they get a vote or not, Democrats are enjoying the opportunity to keep vulnerable Republicans in the hot seat.

“I think at some point it becomes nonsensical not to hold a hearing, and ultimately if Leader McConnell wants to not call the name up after a hearing, that’s on him,” Whitehouse said. “But for him to put Chuck Grassley, at his age, while he’s running, in the hot seat seems like it’s kind of unfair pressure.”

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