With Amy Coney Barrett, Democrats hold a master class on how to lose a Senate debate
(Editor’s Note: This piece first appeared in the Washington Examiner on October 20, 2020.)
Shortly after President Trump nominated Amy Coney Barrett to fill the Supreme Court's vacancy created by the death of Ruth Bader Ginsburg, Senate Democrats vowed to do everything they could to prevent her confirmation. Their fear is that Republicans will shift the court’s ideological center of gravity rightward for a generation or more if they successfully replace Ginsburg, who was one of the court’s leading liberal justices, with Barrett, a conservative jurist who currently sits on the U.S. Court of Appeals for the 7th Circuit.
Still, Democrats concede that there is little they can do in the post-filibuster Senate to stop Barrett’s confirmation. Senate watchers likewise portray Barrett’s confirmation as a foregone conclusion. And while reports initially acknowledgedthat Democrats have some procedural tools to slow the process, the conventional wisdom appears to be that they are powerless to stop it.
Democrats’ actions in the debate thus far suggest that they see it primarily as an opportunity to undermine Republicans in the upcoming election. That is, Democrats hope to leverage their defeat in the debate to win control of the Senate on Nov. 3. But they do not expect to prevent her confirmation. As Judiciary Committee member Sen. Cory Booker remarked last week, “This goose is pretty much cooked.”
Yet such defeatism reflects a superficial understanding of how the Senate works. A closer look at how senators make decisions reveals that it was never inevitable that Democrats would lose the Barrett debate even though they began it narrowly outnumbered by Republicans. Winning required Democrats to shift the narrative in which the confirmation debate unfolded from one that disadvantaged their preferred outcome (blocking Barrett’s confirmation) to one that advantaged it.
Throughout the Senate’s history, outnumbered senators have won debates due to their ability to use parliamentary procedures skillfully to achieve their goals. For example, Sen. James Allen, a Democrat from Alabama, used various procedural tools to persuade a bipartisan majority of senators to reverse their position in a 1975 debate over the Senate’s rules despite being initially outnumbered. In the debate, Allen’s creative use of procedure enabled him to redefine the question confronting his colleagues so that they found it harder to maintain their advantage as the debate unfolded.
Similarly, three conservative Republicans used parliamentary procedure to stop a bipartisan majority from passing the Comprehensive Immigration Reform Act of 2007. To do so, they used the Senate’s rules and practices to redefine the immigration debate’s dominant narrative. Their success is evident in the considerable difference between support for the measure at the debate’s beginning and at its end. The Senate initially voted 69-23 to overcome opposition to taking up the legislation. However, the proponents of comprehensive immigration reform could only muster 65% of their previous numbers two weeks later when the Senate voted 45-50 to end the debate (a 24-vote swing).
These two examples demonstrate how a debate unfolds can affect how it ends. In both instances, parliamentary procedure gave a Senate minority leverage to change outcomes widely expected at the debates’ beginnings. As in 1975 and 2007, today’s senators may use parliamentary procedures to improve their chances of achieving their goals in a debate, even when they are outnumbered. This is because most senators' preferences are not fixed until a debate ends and they vote.
The first step to altering a debate’s trajectory like that over Barrett is for Democrats to imagine a scenario in which the Senate does not confirm Barrett. Democrats must then identify the strategy and tactics needed to make that scenario a reality by working backward from the end of the debate to the present. And then looking forward once again, Democrats must map out the debate’s various inflection points and determine how best to leverage parliamentary procedure at each one to redefine the debate’s narrative gradually to one that advantages their preferred outcome (blocking Barrett).
Engaging in this exercise demonstrates that Democrats are not powerless. They have several procedural tools at their disposal to increase the odds that they can win. 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.
Using parliamentary procedure effectively requires Democrats to think strategically about using it to achieve precise goals. But strategic thinking and precise goals are noticeably absent in prior analyses of Democrats’ procedural options. Those reports highlight procedural tools such as 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.
However, the tools Democrats have at their disposal will be ineffective if they do not use them strategically to redefine the debate's dominant narrative. This is because the 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 Republicans who have announced their opposition to confirming Barrett before Election Day (Sens. Susan Collins of Maine and Lisa Murkowski of Alaska) are likely to help Republicans produce a quorum on the Senate floor. Collins, especially, is unlikely to miss a vote given that she has not missed a single vote in her Senate career.
Furthermore, 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 nondebatable motion.
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 that environment requires Democrats to use parliamentary procedures to delay the confirmation process in a targeted fashion while appearing like reasonable participants. Democrats’ goal should be to make Republican senators appear unreasonable in the eyes of their constituents when they override Democrats' commonsense requests for more time to review Barrett’s judicial record.
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 prevent her confirmation before Election Day.
Democrats may instead 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 avoiding taking a definitive position on the nominee and the president who nominated her. It also casts Democrats as reasonable participants in the debate who are primarily concerned about Republicans’ unprecedented effort to truncate the confirmation process.
That Democrats have consistently muddled their message from the very beginning of the Barrett debate suggests that Republicans have nothing to worry about when the Senate votes on her nomination in the coming days. And the Democrats' playbook should also serve as a cautionary tale on what not to do next year if Republicans lose control of the Senate in the November elections.