Democrats reportedly are circulating a memo on how to delay a vote on the confirmation of Amy Coney Barrett until after the election. The thinking is that if President Trump loses and Republicans lose their Senate majority in the next Congress, the chances of thwarting confirmation in the lame duck session will be substantial, or at least improved substantially.
I don’t know if that thinking is correct, but it’s sensible for the Democrats to delay proceedings to the maximum extent possible. It’s their best hope. And to be fair, I’m pretty sure it’s what Republicans would be trying to do if they were in the Democrats’ shoes.
Here is what, reportedly, the delay memo recommends Senate Democrats do:
Speaking at Length — In the absence of a unanimous consent agreement governing time to debate or cloture, a Senator who gets recognized to speak can speak at length.
Objecting to Routine Consent Agreements — Any Senator may object to routine unanimous consent agreements, such as those to adjourn, to recess, to approve the Journal, or to dispense with the Morning Hour. Forcing roll-call votes on routine motions to adjourn or recess would require Senators to come to the Capitol and also prevent the Senate from taking other action during the time that it would take for Senators to come to vote.
New Legislative Day — If the Senate adjourns without a unanimous consent agreement providing for the handling of routine business at the beginning of a new legislative day, a new legislative day starts with the morning hour, a 2-hour period with a number of required procedures. As part of the morning hour, any Senator could make a non-debatable motion to proceed to an item on the Senate calendar.
Objecting to Lifting Quorum Calls — Any Senator can object to unanimous consent to lifting a quorum call, forcing a recorded vote that would require Senators to come to the Capitol and also prevent the Senate from taking other action during the time it takes for Senators to come to vote.
Motions to Adjourn and Recess — Any Senator can move to adjourn, to adjourn to a day certain, or to take a recess. All of these motions take precedence over a motion to proceed to the consideration of a nomination. Senators could make a series of motions of this sort to force roll-call votes.
Layover Requirements — Senators can raise points of order if measures have not lain over sufficiently under Rule XIV or XVII.
Raising Points of Order — Any Senator who gets recognized by the Presiding Officer can raise a point of order making a procedural objection. Once the Presiding Officer rules, a Senator can appeal the ruling of the Chair, and Senators can demand a roll-call vote. One could imagine an extremely large number of procedural questions on which to vote.
Filing Cloture — If the Senate is not governed by a unanimous consent agreement or post cloture, a Senator who got recognized could move to proceed to a measure or series of measures and file cloture on the motion(s) to proceed. Two days later, the Senate would be required to vote on the cloture motion(s). The number of these motions is limited only by the number of items on the calendar.
Fast-Track Vehicles — Several fast-track statutes, including the Congressional Budget Act, the Congressional Review Act, the War Powers Act, and the Arms Export Control Act, give any Senator the right to move to proceed to a vehicle and force a roll-call vote and sometimes a period of debate. For example, any Senator could submit a concurrent resolution on the budget, and by precedent, if action has not yet been taken on a budget resolution for the coming fiscal year, then the resolution would be immediately placed on the calendar. Once on the calendar, any Senator could move to proceed to the resolution, forcing a roll-call vote on the motion to proceed. Meanwhile, resolutions of disapproval under the CRA can be petitioned out of committee with 30 signatures after 20 calendar days. Such measures could be filed en masse now.
Utilizing Rule XIV — Any Senator can have any legislative measure placed on the calendar in two legislative days under Rule XIV. Leader Schumer could ask every Democratic Senator to introduce bills on their favorite subjects en masse and seek to put them on the calendar via rule XIV. Once they were on the calendar two legislative days later, if Schumer could get the floor, he could move to proceed to each in turn, file cloture, withdraw his motion to proceed, move to another, file cloture, withdraw his motion to proceed, and continue to repeat, stacking up an almost endless series of votes on motions to invoke cloture on motions to proceed to Democratic priorities, until the Majority Leader shut the Senate down.
The memo also identifies things the House can do to tie up the Senate. One is to impeach President Trump.
Impeachment — If the House of Representatives exercised its impeachment power, then the rules of the Senate require the Senate to immediately address that matter.
I think Nancy Pelosi would be putting Democratic seats in jeopardy if she caused the House to impeach Trump at this juncture. She might even be helping to reelect Trump.
I’m far from being an expert on Senate procedure, but my sense is that Majority Leader McConnell will be able to deal with the Dems’ delay strategy. And even if the various delays prevent a vote before the election but leave the Senate on the brink of a vote, I imagine he will see to it that Barrett is confirmed soon after the election.
However, the Democrats’ strategy might succeed in keeping some endangered GOP incumbents from doing as much campaigning as they would like to. Thus, it makes good sense for the Dems to go all in on delay. I’m pretty sure they will.
