CommentsSCOTUS POLITICS--Delaying the confirmation of Judge Brett Kavanaugh has been written off as a lost cause by virtually every court confirmation watcher.
Barring a miracle, it’s true the Democrats don’t have the numbers to stop the confirmation.
There’s no filibuster. There’s no talkathon. There’s no majority of Democrats on the Senate Judiciary Committee who will hear the Kavanaugh testimony. There’s no way to get more documents released about Kavanaugh then what the committee chair and Senate Majority Leader, Mitch McConnell will allow—and that’s the bare minimum.
However, there is one thing that Senate Democrats can do to just say no to Kavanaugh that’s far more effective than railing at him during committee testimony. They cannot show up for one or more of the Senate Judiciary Committee hearings.
The Senate rules are clear on what it takes to hold a lawful hearing. There must be a quorum of committee members present to as the rules states “transact business.” A legal quorum is nine committee members and two members of the minority party. In this case, that means two Democrats must be present to constitute a quorum. Without them, there’s no quorum, and therefore business can’t be lawfully transacted.
The GOP would scream, yell, and bluster, about obstructionism and playing dirty politics. It would have no case. McConnell used pretty much that cynical ploy for almost one year when he stopped the confirmation of Obama’s SCOTUS nominee, Merrick Garland, to the high court. He did it by keeping GOP Senators in total line and making sure that not one of them broke ranks and agreed to hold any hearing on Garland.
A Democrat’s stay away from the hearings for even one day would do more than just be a disgruntled protest. It would cast glaring light on the GOP leadership’s refusal to comply with the request by Democrats for tens of thousands more documents on Kavanagh’s tenure as a White House counsel to then President W. Bush. It would demonstrate to Kavanaugh opponents that Senate Democrats are firm in their resolve to stop a bum rush through to the bench of one of the most crucial and pivotal SCOTUS appointments in years. It would scramble the timetable and proceedings of the judiciary committee and the Senate.
It would expose the hypocrisy of a GOP that could boycott a SCOTUS pick it didn’t like or want for a year and get away with it. This would force the GOP to explain why it could use a parliamentary tactic to stop Garland but would take affront at the Democrats doing the same.
The X factor in all of this is not the tactics the Democrats have at their disposal but the Democrats. A handful of Red State Democratic senators voted to confirm Gorsuch. The pressure will be on them again to do the same with this Trump pick. Still, the GOP gave Democrats a template on how to use every Senate ploy to hector, harass, stall Trump’s SCOTUS nominee. The question is do they have the stomach to do it? If not, we’ll have Kavanaugh on the bench for decades to come.
(Earl Ofari Hutchinson is an author and political analyst. He is the author of the forthcoming The Kavanaugh Court (Amazon). He is a weekly co-host of the Al Sharpton Show on Radio One. He is the host of the weekly Hutchinson Report on KPFK 90.7 FM Los Angeles and the Pacifica Network. Hutchinson is an occasional contributor to CityWatch.)
-cw
