Can Democrats Prevent a Republican Supremacy on the Supreme Court?
The ongoing debate over the Supreme Court vacancy has thrown the bugbear of the Senate into sharp focus. Democrats now find themselves grappling with a scenario where their attempts to obstruct a Republican nominee have hit a crushing wall, all due to previous procedural decisions seized upon by Sen. Mitch McConnell.
Mitch McConnell's Nuclear Option
No. Democrats lost the ability to block a Supreme Court appointment by Republicans via the filibuster. The Republican-controlled Senate, led by Majority Leader McConnell, made it clear that no standing against a Supreme Court nominee could stand if the majority would not allow it. This move was a stark departure from longstanding precedents, starting with the Reid-McConnell compromise of 2013 which allowed Republicans to bypass the filibuster for most lower court nominees, and later solidified in 2017 when McConnell used the "nuclear option" once again to push through Neil Gorsuch's confirmation.
Moreover, Republicans have repeatedly overridden the blue slip process, a critical stage in the confirmation process for judicial appointments. This further erodes the procedural buffers that historically protected judicial appointments from partisan maneuvering.
Legislative Alternatives for Democrats
While procedural obstacles loom, Democrats are not entirely without options. Theoretically, they could pursue a drastic legislative overhaul of the federal bench, adding new seats to the Supreme Court or the lower courts. Such an action would be entirely legal under the Constitution, though politically fraught and deeply controversial. Alternatively, Democrats might consider temporarily suspending the Senate's customary rules of filibuster for the purpose of quickly confirming a nominee. A one-term exception or a rule change could be passed through reconciliation procedures, thus rendering the nomination more manageable.
Procedural Struggles and Reprisals
Once upon a time, the Democratic minority could delay a nominee through extended debate and the threat of filibuster. This period is over, however, as McConnell's 2017 decision caps a decades-long trajectory of procedural redefinitions and reforms that now severely impair a non-majority party's ability to effectively oppose the majority party on the Senate floor.
The culmination of this process is on full display with the current Supreme Court race. Democrats face the challenge of either accepting the fait accompli or exploring radical measures that could itself be politically devastating.
Alternative Solutions
Theoretically, there are still hypothetical solutions that have yet to be exhausted. One such option might be for the House Democrats to draft articles of impeachment against the President, forcing Senate proceedings to be paused. With the Senate already burdened with investigative obligations, a constant stream of impeachment articles could create a logjam on the judicial calendar. However, the political appetite for such action in a highly polarized climate is uncertain and could risk Democrats losing crucial elections.