Democrats are using big talk to prepare for their fight against a Supreme Court Justice confirmation with President Trump claiming he will nominate a replacement for Ruth Bader Ginsburg this week. But they do not have very many options available to them. One interesting gambit would be a quorum call which would essentially shut down the Senate for as long as they could stay hidden. This option would be in play if they could only get three Republicans to openly oppose a Supreme Court nominee and one more who is sympathetic but unwilling to vote against.
To have a quorum, 51 Senators are required. That means if all 47 Democratic Senators are missing, they would need three Republicans to be out as well. Susan Collins has expressed her unwillingness to vote. Mitt Romney and Lisa Murkowski have hinted that they will not vote for a Trump-nominated Justice before the election. In the past, Chuck Grassley and Lindsey Graham have said they want the next Justice to be voted on after the election, though Graham has said he will now vote for one. Lamar Alexander and Pat Roberts are both retiring and could be swayed to oppose a vote. Cory Gardner is vulnerable in his election and has not made a clear statement on which way he leans.
That means three Republican Senators are very likely against the President picking a Ginsburg replacement before the election with five potential flips. Democrats need a total of four. Quorum requires 51 Senators in the chamber, but one needs to be there to have a quorum call or roll call vote. Otherwise, the presence of 50 or fewer Senators will not be recorded and quorum will be assumed. Vice President Mike Pence counts as the tie-breaker vote, but he does not count during a quorum call.
If all Democrats plus three Republicans hide until after the election, at least one person in the chamber would need to call for quorum. In essence, Democrats need four Republicans to be in on the gambit for it to be successful. If it happens and all votes are blocked, Senate Majority Leader Mitch McConnell would have to ask the Sergeant at Arms to compel a Senator to come to the chambers.
To review, Democrats need three Republicans to stay out of the Senate chambers plus one more Republican to make a quorum call from within the chambers. All 50 opposition Senators would then have to go into hiding, avoiding the Sergeant at Arms and any law enforcement officers tasked with locating them. If they are successful, the Senate would be shut down until at least one who is in hiding is found and brought to the chamber.
This may seem like a lot of hassle to block a vote, but it may be easier to get one of the on-the-fence Republicans to call for quorum than to vote against the nomination. Assuming Romney, Collins, and Murkowski are the only Republicans willing to actively vote against the nominee, having a sympathetic Senator calling for quorum may be easier than getting them to vote against a constitutional conservative nominee. It would be procedural versus outright opposition, which may be enough to push Grassley, Alexander, or Roberts to participate in the gambit.
Having a 4-4 split in the Supreme Court going into what is almost certainly going to be a very contentious and legally challenged election is, as Ted Cruz noted, a potential constitutional crisis.
“We cannot let Election Day come and go and with a 4-4 court,” he said. “We risk a constitutional crisis if we do not have a nine-justice Supreme Court, particularly when there is such a risk of a contested election.”
Democrats have threatened every possible way to fight the nomination and confirmation of Ginsburg’s replacement. There’s an ultimate solution for Republicans, of course. Now more than ever, they need to win big in November.
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