Political Animal

Chuck Schumer’s Last Desperate Options to Stop a Supreme Court Vote

The Senate Democrats held a caucus call on Saturday. Their aim was to develop a strategy for opposing a rushed replacement for Supreme Court Justice Ruth Bader Ginsburg. Sam Stein and Sam Brodey of The Daily Beast report that there was a split between liberals who advocate “a dramatic show of resistance with overt political threats” and moderates who want to remain “squarely focused on the implications that the confirmation would have on health care.”

Yet, there was agreement on the goal:  Keep the seat open in the hope that Joe Biden can fill it next year. The Republicans can thwart this goal, provided they stay united. The question is whether any strategy can stop them.

The first arrow in the Democrats’ quiver is Senate procedure. Unfortunately, recent rule changes have all but eliminated their ability to resist. In 2013, then-Senate Majority Leader Harry Reid reached a breaking point with the Republicans’ refusal to seat President Obama’s nominees to the D.C. Circuit Court of Appeals, the nation’s second highest court. At one point during the struggle, there were four vacancies on the D.C. Circuit and Senate Republicans were arguing that none of them should be filled, but rather the court’s size should be reduced.

This led Reid to deploy the “nuclear option.” He changed the Senate’s filibuster. Instead of needing 60 votes to confirm a cabinet member or federal judge, a simple majority of 50 (plus the tie-breaking vice-president) would suffice. The only exception was the Supreme Court. Its justices were considered too important to be confirmed without broader consensus. In 2017, with Republicans in control of the Senate, Mitch McConnell eliminated this exception, too, so he could shepherd Neil Gorsuch’s nomination to the high court.

Without the filibuster available as a procedural tool, the Democrats must rely on a motley collection of improvised tactics none of which are likely to thwart a GOP united behind President Trump’s nominee who he plans to announce on Saturday. But there are some.

The first strategy is to delay. It’s found in Rule VI of the Senate Rules.

RULE VI
QUORUM—ABSENT SENATORS MAY BE SENT FOR

Whenever upon such roll call it shall be ascertained that a quorum is not present, a majority of the Senators present may direct the Sergeant at Arms to request, and, when necessary, to compel the attendance of the absent Senators, which order shall be determined without debate; and pending its execution, and until a quorum shall be present, no debate nor motion, except to adjourn, or to recess pursuant to a previous order entered by unanimous consent, shall be in order.

The important thing here is that a quorum consists of “a majority of the Senators duly chosen and sworn,” and Vice-President Mike Pence doesn’t count for this purpose.  One Democratic senator would have to be present to raise objections, but if the rest refused to show up, the Republicans would need 50 of their 53 senators in attendance in order to begin debate on the nomination. With many GOP senators campaigning for reelection, this could present some challenges.

Two of them, Susan Collins of Maine and Lisa Murkowski of Alaska, have already stated their opposition to confirming Ginsburg’s replacement before the election. If they could be convinced to join the Democrats in denying a quorum, only one more vote would be needed to stop the process. That though presents a lot of “ifs.” Collins and Murkowski oppose a pre-election nominee, but they might well back McConnell and join the rest of their Republican colleagues to stop this Democratic gambit.

The second strategy is try to prevent a vote. The same basic strategy can be deployed at the end of the debate over a nomination to prevent a vote:

RULE XII
VOTING PROCEDURE

No request by a Senator for unanimous consent for the taking of a final vote on a specified date upon the passage of a bill or joint resolution shall be submitted to the Senate for agreement thereto until after a quorum call ordered for the purpose by the Presiding Officer, it shall be disclosed that a quorum of the Senate is present; and when a unanimous consent is thus given the same shall operate as the order of the Senate, but any unanimous consent may be revoked by another unanimous consent granted in the manner prescribed above upon one day’s notice.

The Democrats can also use quorum rules to harass the Republicans’ efforts to move the nomination through the committee process. The rules state that at least two members of the minority must be present in order for a hearing to proceed. The problem is, it’s not likely to be effective because the chairman can just ignore the requirement. This was demonstrated in August 2019, when Judiciary Chairman Lindsey Graham brushed off the lack of a quorum to push through the Secure and Protect Act. He also simply ignored a provision of the committee rules that states, “At the request of any member…a bill, matter, or nomination on the agenda of the Committee may be held over until the next meeting of the Committee or for one week, whichever occurs later.” No doubt, Chairman Graham would ignore these rules again to speed along the confirmation of a new Supreme Court Justice, but forcing him to do so would still be a smart strategic move. The more it looks like the Senate Republicans are breaking rules and violating norms, the less legitimate their process will appear to the public.

The Democrats might have more assured success by invoking Rule XVII to cause a two-day delay.

RULE XVII
REFERENCE TO COMMITTEES; MOTIONS TO DISCHARGE; REPORTS OF COMMITTEES; AND HEARINGS AVAILABLE

5.4 Any measure or matter reported by any standing committee shall not be considered in the Senate unless the report of that committee upon that measure or matter has been available to Members for at least two calendar days (excluding Sundays and legal holidays) prior to the consideration of that measure or matter. If hearings have been held on any such measure or matter so reported, the committee reporting the measure or matter shall make every reasonable effort to have such hearings printed and available for distribution to the Members of the Senate prior to the consideration of such measure or matter in the Senate.

With only 41 days until the election, every bit of delay can help. But, as Andrew Prokop of Vox states, “If Republican senators are unconcerned about the appearances of an unseemly rush to a vote, they can certainly” get a confirmation in that window.

In theory, the House of Representatives could intervene. Speaker Nancy Pelosi could exploit Senate Rule  VII on Morning Business which requires the presiding officer to “lay before the Senate…messages from the House of Representatives as may remain upon his table from any previous day’s session undisposed of.” By sending a flurry of messages to the Senate each day, she could cause some mild headaches.

Super longshots from the House. One is to impeach Trump again which is utterly implausible and would likely backfire politically but that would force the Senate to stop all business and conduct a trial. The other is to threaten to shutdown the government, using the same brinksmanship that the GOP has used in the past. Pelosi has already said that she won’t go there.

Perhaps a combination of these stalling and harassment tactics could create such a truncated confirmation process that some Republican senators balk.

If the confirmation is not completed before Election Day, some new opportunities arise. There are two Special Elections, one in Georgia and one in Arizona. The winners of those elections will be seated as soon as the results are certified. The Georgia race will go to a runoff election if no one gets an outright majority, but the Democrats are heavily favored to win the Arizona seat. By the end of November, it’s likely that astronaut Mark Kelly, the Democrat, will have defeated incumbent Republican Martha McSally in the Senate, giving the Democrats a potentially decisive extra vote in the Lame Duck session. (But it’s also possible the Republican majority in the Senate could find a way to delay seating Kelly.)

The Republicans are not likely to be deterred by procedural moves, but cleverly employed they can raise the political costs for them. Supreme Court confirmations typically take two or three months. Obviously, any lifelong assignment should require very thorough vetting. A rushed process is politically problematic for this reason alone, so the fewer days they have to operate the most suspect their process will seem.

Additionally, the Republicans are operating right at the margin with approximately 51 votes. A delay past the election would put them under more pressure, as it’s expected they’ll be down to 50 votes once Mark Kelly is seated.

If Biden wins the election, as he currently favored to do, and the Democrats take control of the Senate, the costs of pushing through a confirmation following a Democratic sweep will be considerably higher.

If the Republicans nonetheless succeed in their effort to replace Ginsburg, the Democrats will have opportunities to respond, perhaps by expanding the Supreme Court, or ending the filibuster entirely, depriving a future GOP minority in the Senate of any real leverage. For now, delay is Chuck Schumer’s best and only option and it’s not very good.

Can Democracy Survive the Demise of the GOP?

The Greek philosopher Heraclitus is credited with the observation that: “The only constant in life is change.” In the 21st century, the pace of change has accelerated and, as activist and educator Tim Wise pointed out back in 2009, one of its manifestations created a “perfect storm for white anxiety.”

The “perfect storm” Wise refers to includes (1) the demographics of whites becoming a plurality and no longer a majority by 2040, (2) the election of the country’s first African American president, (3) the fact that, for the first time in 75 years, white people experienced double-digit unemployment, and (4) the “cross-pollination” of racial diversity in our entertainment culture. 

Over the last few years, prophetic voices have warned us about what would happen in response to that kind of change. In 2014, blogger Doug Muder made the prescient comparison between what had become known as the Tea Party and the Confederacy. Documenting how the Civil War didn’t end when Lee surrendered at Appomattox, he identified the Confederate mindset.

The essence of the Confederate worldview is that the democratic process cannot legitimately change the established social order, and so all forms of legal and illegal resistance are justified when it tries…The Confederate sees a divinely ordained way things are supposed to be, and defends it at all costs. No process, no matter how orderly or democratic, can justify fundamental change.

The party that has relied on winning with a white majority is increasingly finding itself at odds with our democratic processes. Muder’s warning was repeated by David Frum in “Trumpocracy” where he wrote that “if conservatives become convinced that they cannot win democratically, they will not abandon conservatism. They will reject democracy.”

In The Great Suppression, journalist Zachary Roth outlined the steps Republicans took when they realized that their party could no longer claim to represent the majority.

Today’s conservatives have no such confidence that the people are on their side. In fact, they are beginning to perceive that they’re in the minority – perhaps more glaringly than ever before. And yet this realization has brought with it another more hopeful one: being outnumbered doesn’t have to mean losing.

Following their defeat in the 2008 election, the GOP increasingly relied on anti-democratic strategies such as voter suppression, gerrymandering, preemption, and judicial engagement.  They have now escalated into being a party that will do anything to hang on to power. 

As an example, Majority Leader McConnell didn’t cross the Rubicon when he proposed jamming through Trump’s Supreme Court nominee weeks before an election (or even during a lame-duck session). That happened back when he refused to even hold hearings, much less a vote, on a Democratic president’s nominee almost a year prior to an election. 

McConnell’s abandonment of precedents must be put into the context of his reveling in being the “grim reaper” who refuses to consider any major legislation in the Senate after passing tax cuts for the wealthy in 2017. His only goal has been to confirm the extremist judges that Trump has nominated to the federal courts. As I’ve previously explained, McConnell knows that his party is in decline and has been willing to castrate Congress in order to allow judges—who serve lifetime appointments—to legislate from the bench.

Over the last four years, Republicans have demonstrated how far they’ll go to stand with a criminal president. That could reach its peak when all of Trump’s lies about fraud associated with mail-in ballots become his pathway to stealing the election. Just recently he told the crowd at a campaign rally that, “We’re gonna have a victory on November 3rd the likes of which you’ve never seen. Now we’re counting on the federal court system to make it so we can actually have an evening where we know who wins, OK? Not where the votes are going to be counted a week later or two weeks later.” That’s the plan—simply disenfranchise the millions of people who vote by mail during a pandemic. Will Republicans stand by while Trump uses the courts McConnell has stacked to steal the election? We’ve seen nothing to indicate that they wouldn’t. 

Since the mid-nineteenth century, politics in the U.S. has been dominated by two parties: Republicans and Democrats. While we have many examples of how those parties fought back from minority status, we have no history to inform us about what happens when one of them retreats from seeking a majority and thus begins to die. 

Fighting back has always meant building a coalition large enough to win elections. The reason the Republican Party faces its demise is that, ever since Barack Obama beat Mitt Romney in 2012, it has rejected any attempt to reach out to a changing America. Instead, Republicans have relied on firing up their existing base. As Lindsey Graham once said, the GOP’s problem is that “we’re not generating enough angry white guys to stay in business for the longer term.”

We don’t know what happens when an American political party dies. But what we’re seeing from Republicans is an attempt to take democracy down with them. 

Trump’s Manufacturing Record Stinks, Newest Data Shows

To hear President Trump describe it, “the manufacturing sector is booming,” and “we’ve witnessed one manufacturing miracle after another.”  These paeons to his own success with manufacturing are the economic equivalent to his claims that he has masterfully handled the pandemic. In fact, under his presidency, foreign outsourcing by U.S. manufacturers rose frighteningly while the number of U.S. manufacturing workers fell sharply. Under Barack Obama, U.S. manufacturers cut back substantially on outsourcing, and manufacturing jobs at home rose sharply.

Trump’s grim record on outsourcing is a testament to his failed trade wars. He slapped tariffs on imports from our major trade partners, including China, Mexico, Canada, and all of Europe, as his way of encouraging American multinational companies to downsize their foreign operations and produce more here.  He failed.  The most recent data from the Bureau of Economic Analysis show that during Trump’s first two years in office, as he imposed the tariffs (2017 and 2018), employment by the foreign affiliates and subsidiaries of U.S. manufacturers (which is all overseas) jumped by 257,400 jobs, including 58,700 more outsourced jobs in China, 26,300 more in Mexico, and 112,100 more jobs across Europe.

Job Outsourcing by U.S. Manufacturers under President Trump and President Obama

  TRUMP OBAMA
2016 2018 Change 2014 2016 Change
China 860,000 918,700 + 58,700 884,400 860,600 – 23,800
Mexico 885,400 911,700 + 26,300 936,300 885,400 – 50,900
Canada 342,900 352,800 + 9,900 355,600 342,900 – 12,700
Europe 2,162,700 2,274,800 + 112,100 2,318,000 2,162,700 – 153,300
Worldwide 6,355,600 6,613,000 + 247,400 6,445,900 6,355,600 – 90,300

Economists warned that Trump’s tariffs could backfire.  They were right: Other countries retaliated with new tariffs on U.S. exports and, in any case, the tariffs could not offset the savings from producing abroad for foreign markets.  Instead of tariffs, Obama had focused on enforcing trade laws and respecting our treaties.  During the two years before Trump took office, 2015, and 2016, foreign outsourcing by the U.S., manufacturers actually fell by 90,300 jobs worldwide, including 27,800 fewer U.S. outsourced jobs in China, 50,900 fewer in Mexico, 12,700 fewer in Canada, and 153,300 fewer in Europe.

The pandemic and Trump’s unapologetic mismanagement of it also have been an additional blow to U.S. manufacturing workers. American manufacturing employment declined by 237,000 jobs from January 2017 to August 2020.  Unhappily for Trump,  most of those job losses have occurred in six states critical to his hopes for a second term.  The latest data show that since Trump took office, U.S. manufacturers have downsized by 77,400 jobs in Michigan, 31,400 jobs in Ohio, 28,900 jobs in North Carolina, 24,000 jobs in Pennsylvania, 14,700 jobs in Minnesota, and 11,900 jobs in Wisconsin. All told, manufacturing employment in those six states has fallen, thus far, by 188,3000 jobs under Trump.  It is another sea change from the comparable period under Obama when those six states added 126,700 new jobs in manufacturing.

To be fair, two other states that could matter a great deal on November 3rd added manufacturing jobs under Trump: Those jobs have increased by 10,200 jobs in Florida and by 8,300 jobs in Arizona. For the record, those two states also added 39,000 and 5,100 manufacturing jobs, respectively, during the comparable period under Obama.

U.S. Manufacturing Jobs under President Trump and President Obama

TRUMP OBAMA
1/2017 8/2020 Change 1/2013 8/2016 Change
MI 617,100 539,700 – 77,400 538,500 603,800 + 65,300
MN 317,800 303,100 – 14,700 307,100 318,200 + 11,100
NC 465,900 437,000 – 28,900 442,100 465,200 + 23,100
OH 686,800 655,400 – 31,400 660,200 686,200 + 26,000
PA 561,000 537,000 – 24,000 565,900 560,200 – 5,700
WI 467,900 456,000 – 11,900 460,300 467,200 + 6,900
Total 3,116,500 2,928,200 – 188,300 2,974,100 3,100,800 126,700
 
AZ 162,800 171,100 + 8,300 156,300 161,400 + 5,100
FL 361,100 371,300 + 10,200 318,200 357,200 + 39,000
 
All US 12,369,000 12,132,000 – 237,000 11,983,000 12,348,000 + 365,000

U.S. manufacturing workers have lost ground under Trump in other ways as well.   Their real wage gains slowed sharply since Trump took office.  From January 2017 to August 2020, the average real weekly earnings of manufacturing workers increased less than $10, from $1,147.51 to $1,156,80 (in August 2020 $).  Over the corresponding part of Obama’s second term, from January 2013 to August 2016, their average real earnings increased nearly $43, from $1,101.64 to $1,144.62 (again, August 2020 $).

The difference is meaningful: On an annual basis, the average earnings of American manufacturing workers have risen $483 under Trump, small stuff compared to their average gains of $2,235 during the comparable period of Obama’s second term.

With this dismal record, the president has the same options as he does with the pandemic: He can ignore his record, he can lie about it, or he can offer a better plan and policy for a second term. Biden is out campaigning for $400 billion in “Buy American” federal procurement, a new tax credit for modernizing manufacturing facilities and ending tax provisions that reward outsourcing.  Trump is proposing …. nothing new. In this area, as with the pandemic and most other important matters, from climate change to racial justice, Donald Trump’s default position, sadly, is the empty combination of the first two options.

Ginsburg Vacancy: Will It Cause White Voters to Move Back to Trump?

With fewer than 40 days left before Election Day, Nate Silver’s FiveThirtyEight gives Joe Biden a 77 percent chance of winning and wresting the presidency away from Donald Trump. In fact, according to calculations by Harry Enten of CNN, “Biden has a better chance (about 45%) of winning 340 electoral votes than Trump has of winning the election (about 25%). Biden’s chance of taking 400 electoral votes is pretty much the same of Trump winning.” The demographic explanation for the state of the race is that Trump has lost a lot of support among white voters.

This point was explored here in early-September in a piece by Robert Shapiro, a former Under Secretary of Commerce for Economic Affairs for President Clinton, and it’s reiterated by David Siders of Politico. Polling indicates that Trump has lost support from every kind of white voter, whether male or female, working-class or professional, college-educated or not. This is more than offsetting a slightly rosier picture for him than four years ago with Black and Latinx voters.

Yet, Silver makes a highly contestable point when he argues that “Brett Kavanaugh’s confirmation to the court one month before the midterm elections two year [sic] ago did nothing to stop Democrats from steamrolling Trump and the GOP.”

When Nate Cohn of the New York Times did a post-mortem on polling performance in the 2018 midterms, he noted that they were much-improved at the state level over 2016, when they missed Trump’s strength in several traditionally blue states. Still, the polls underestimated the Democratic candidates in New York and California and overestimated them in Florida, Indiana, Ohio, and Missouri. What happened is that blue states got bluer and red states got redder. Silver’s post-mortem showed much the same thing, with most of the error in his projections explained by upset Senate and gubernatorial wins for the Republicans in Florida and Mike Braun’s unseating of Sen. Joe Donnelly of Indiana, who was leading in most late polls. It’s possible that Kavanaugh polarized the electorate and thereby helped the GOP hold on to enough traditional Republicans to win some statewide races they were primed to lose.

With the startling death of Justice Ruth Bader Ginsburg and President Trump’s decision to announce a nominee, we have a repeat of the Supreme Court taking center stage in the election cycle. If the vacant seat polarizes the electorate, it could make it harder for the Democrats to win in red districts and states and affect both the outcome of the presidential election and the battle for control of the Senate.

Consider Mississippi, where the last three presidential polls, dating from April to August, show Trump winning comfortably by 10 or 11 points. Yet,  the most recent poll of the Senate election there shows signs of trouble for incumbent Republican Cindy Hyde-Smith. In former Mississippi member of congress and Secretary of Agriculture, Mike Espy, she faces a black challenger who she leads, by a single point. The same poll taken in April had her up by 26 points.

The dramatic narrowing of the race is partly attributable to Hyde-Smith’s weaknesses as a candidate. Adam Ganucheau of Mississippi Today reports:

Hyde-Smith, meanwhile, has struggled to raise cash this cycle. Among incumbent senators, Hyde-Smith has raised less than 96 incumbent senators, including Mississippi Sen. Roger Wicker, who faces reelection in 2024. The three Senate incumbents who raised less than Hyde-Smith have announced they will not seek re-election

If Hyde-Smith is struggling to win enthusiastic support from her base, the death of Ginsburg could change that. It certainly changed things for her opponent:

Espy has raised nearly $200,000 since Ginsburg’s passing was announced on Friday evening, according to Espy campaign sources. That total — a single-day fundraising record for Espy this cycle — is close to one-third of what he raised from April to June.

Outsiders tend to think of Mississippi as implacably conservative, largely indistinguishable from its neighbors. But it has by far the largest black population (37 percent) and, contrary to its reputation for disenfranchising its black voters, a Kaiser Family Foundation study of the 2018 electorate found a higher percentage (78 percent) of eligible black voters are registered in Mississippi than in any other state. Only 72 percent of eligible white voters there are registered.

What makes Mississippi reliably Republican is the inelasticity of its electorate. According to a post-2018 midterm study by Silver, only Georgia and Alabama had less wiggle in their vote. Both white and black Mississippians are nearly impervious to shifting winds and prevailing political narratives.  Yet, if whites begin to abandon the Republican candidates, Mississippi can tip blue faster than any other Deep Southern state.

Trump has been losing white support from every quarter, and Mississippi is no different.  He carried the state in 2016 by nearly 18 points, so a 10-11 point poll advantage in 2020 already shows some serious erosion. Espy closing a spring deficit of 26 points down to a 1 point race is not unrelated to this national trend. But Mississippi is also a deeply religious state with a strong anti-choice majority. The white community there has had a contentious relationship with the Supreme Court ever since the 1954 ruling in Brown v. the Kansas Board of Education. Nothing reminds white voters in Mississippi why they vote Republican more than the battle to win conservative control of the Court and roll back Roe v. Wade.

I used Mississippi as an example to examine a possible Ginsburg effect because it has the starkest racial polarization combined with a clear preference for a big Republican majority on the Supreme Court. The impact might be bigger in the Magnolia State than in places like Montana and Alaska which also have contested Senate elections but where the voters are less religious and more libertarian-minded than in Deep South.

Yet, even in Mississippi, it cuts both ways. Espy’s huge infusion of cash benefits his campaign. Admittedly, almost all of that money probably came from out of state, but it will still have an impact. The problem for the Democrats is that they were already energized while a lot of white Trump voters were drifting away from him. If they come back in the fold over the Ginsburg vacancy, it will make it harder for the Democrats to win red states. Mississippi was always a long shot for both Espy and Biden, but the contests in places like Kansas and Georgia with a lot of social conservatives are probably tougher lifts for the Democrats now.

In 2018, the Democrats over-performed in the House, winning 40 seats. But they suffered a major disappointment in the Senate, and the same thing could happen again, perhaps for the same reason.