Senate Dems Ready Arsenal of Delaying Tactics, but Strategists Say GOP Has Votes to Confirm Barrett

September 29, 2020 Updated: September 29, 2020

Refusal of multiple Democratic senators, including Minority Leader Chuck Schumer (D-N.Y.), to meet individually with Supreme Court nominee Judge Amy Coney Barrett is the first move of many they’re planning in hopes of delaying her Senate consideration past the November election.

But, while they expect a bitter, time-consuming struggle, veteran congressional and campaign strategists from both sides of the partisan aisle tell The Epoch Times the ultimate result is all but certain to be a 51–49 Senate vote to confirm Barrett to fill the seat vacated by the Sept. 18 passing of Justice Ruth Bader Ginsburg.

Even so, a memo prepared by an anonymous group of longtime congressional aides and liberal judicial advocacy groups circulated among Democrats and journalists in recent days detailed 10 procedural tactics for erecting roadblocks to the Senate’s confirmation efforts.

“Democrats must act to delay action by [Senate Majority Leader Mitch] McConnell (R-Ky.) to fill Justice Ginsburg’s Supreme Court seat. Denying action before the election could markedly increase the probability that the results of the election would change the vote in the Senate and thereby allow for the seating of a more progressive Justice,” the memo states.

The authors referred to the possibility former Vice President Joe Biden will defeat President Donald Trump on Nov. 3 and enough incumbent Republican senators will lose to put Democrats back in control of the Senate.

“Failing that, moving forward with confirmation during a lame duck session, if consent of the governed had been denied, would buttress the case for structural [Supreme] Court reform,” they wrote.

“Moreover, much of the broad electorate will want to see congressional Democrats fighting to protect the Court and their constitutional rights. Mere capitulation to what Washington insiders see as the inevitable will be viewed by many as abandonment of the Democratic base and could undermine enthusiasm.”

Some of the 10 suggestions are familiar such as raising points of order, but a few border on the parliamentary extreme, like using fast-track statutes to force time-consuming debates and roll-call votes on issues having nothing to do with Barrett.

“For example, any senator could submit a concurrent resolution on the budget and by precedent, if action has not yet been taken on a budget resolution for the coming fiscal year, then the resolution would immediately be placed on the calendar,” the memo states.

“Once on the calendar, any senator could move to proceed to the resolution, forcing a roll-call vote on the motion to proceed. Meanwhile, resolutions of disapproval under the Congressional Review Act (CRA) can be petitioned out of committee with 30 signatures after 20 calendar days. Such measures could be filed en masse now.”

‘Fait Accompli’

The CRA, first passed in 1996, is rarely used by Democratic presidents, but Trump has done so dozens of times since 2017.

“That’s all well and good and do all of that and fight the good fight to show your base that you’re trying to fight the good fight, but none of that matters because at the end of the day, this is a fait accompli, they’ve got 51 votes,” Democratic strategist Christina Antelo told The Epoch Times.

“The only mystery for me right now is whether it happens before Nov. 3 or right after Nov. 3,” said Antelo, who is principal of the Washington-based Ferox Strategies firm that numbers among its clients Walmart, The Walt Disney Company, and The Gap.

A veteran Senate Republican legislative strategist who requested anonymity had a less-charitable view of the memo.

“There’s nothing new here, I mean this comes up every time,” the GOP strategist said. Pointing to the memo’s citing of “Motions to Adjourn and Recess” as a delaying tactic, he said: “Let’s say they did that. What happens is McConnell is first recognized when the Senate opens, so they open the Senate, the chair recognizes the majority leader who files cloture on the nomination, then it doesn’t matter if you do nothing the rest of the day.

“You come in the next day, whether you have consent or not, that’s the required intervening day, and by the third day, by rule, you have to vote on the nominee, so, yeah, they could do that, but it would look silly.”

Asked if anything in the memo would surprise Republicans, the former Senate leadership strategist laughed, saying, “No, we did the same things” when his party was in the Senate minority.

Laura Fink, founder and chief executive officer of the California- and New York-based Rebelle Communications, told The Epoch Times the present nomination atmosphere is a product of the Senate’s gutting of the filibuster.

“Because the Democrats don’t have the filibuster, they have to dig in procedurally and go through a bunch of arcane rules to try to find a way to, at best, delay the process,” Fink said.

She was referring to Senate “nuclear option” votes under Democratic leadership in 2013 to end the 60-vote requirement to end debate on all nominees except those to the Supreme Court, and under Republican leadership in 2017 to do away with the requirement on nominees to the high court as well.

Messaging around the Democrats’ delaying tactics, Fink said, should be focused on “the Affordable Care Act and the 25 million Americans who stand to lose their health care coverage with the Trump administration backing the lawsuit headed to the Supreme Court in early November.”

Fink said Barrett would be able to participate in the Court’s deliberation on the case brought by 22 Republican state attorneys general. Barrett would be a fifth vote to declare unconstitutional President Barack Obama’s signature health care program.

Asked if Democrats should support restoring the filibuster, Fink said the nuclear option ended traditional Senate decorum, so Democrats now must “fight fire with fire” by expanding the Supreme Court.

“At some point, can we all talk about disarming and sort of going back to the maintenance of norms by both sides by not using every power move they can by mutual agreement? I think we can get there, but I don’t see us getting there unless Democrats go toe-to-toe on the terms the Republicans have set,” she said.

Contact Mark Tapscott at Mark.Tapscott@epochtimes.nyc