Supreme Court fight pushes Senate toward brink
The burgeoning fight to fill Justice Ruth Bader Ginsburg’s Supreme Court seat is pouring fuel onto already simmering tensions in the Senate and threatening to fundamentally reshape the institution.
Senators in both parties acknowledge the level of dysfunction in a chamber where the bulk of their time is spent processing nominations amid failures to break stalemates on pressing national issues such as coronavirus relief and police reform.
“I’m praying to God that the better angels start flying with my colleagues. That’s all I can tell you. As Abraham Lincoln said, we all have better angels. I’m looking for them right now,” said Sen. Joe Manchin (D-W.Va), who is part of a shrinking group of centrist senators in an increasingly partisan Senate.
Sen. Lisa Murkowski (Alaska), a moderate GOP senator, noted that Supreme Court nominations were a part of being a senator but added that there is “political tension, and that’s a reality. Does it help relationships on the floor? No.”
“Both sides have to acknowledge that perhaps we haven’t acted with our best manners, and so how we respect one another and we respect our own rules, I think, is important for rebuilding that trust,” added Murkowski, who made an unsuccessful call for the Senate to wait until after the election to consider Trump’s nominee.
Murkowski was on the floor recently with Sens. Dick Durbin (D-Ill.) and John Thune (R-S.D.), the two party whips, where she warned that the Senate was “failing” as an institution. When a reporter noted that the three senators at least appeared to agree that the Senate should behave in a healthier way, Murkowski interjected with a laugh, “I hope we agree on that.”
But an off-ramp that could break the gridlock and lower temperatures is nowhere in sight. The explosive battle over the high court is further dividing a Senate that is about to engage in its third Supreme Court fight in less than four years, with Trump expected to formally name Judge Amy Coney Barrett as his nominee on Saturday.
There was already a taste of the looming gridlock this week when Senate Democrats — who can slow down but not block the nomination — invoked the two-hour rule that limits the ability for committees to meet, arguing there shouldn’t be “business as usual” if Republicans are going to try to fill the seat.
Sen. Ted Cruz (R-Texas) also grabbed headlines for blocking an amended resolution honoring Ginsburg, who died last week at the age of 87, because of language over her reported wish that her successor not be chosen until a new president is sworn in.
Instead of wrapping up their preelection work by Thursday, as Republicans had hoped, Democrats are forcing the chamber to return next week to finish a government funding bill, keeping vulnerable GOP senators off the campaign trail. Democrats are also facing pressure to try to prevent the Senate from leaving and require that Republicans show they have a quorum of 51 senators needed to do business.
“I just think they’re trying to throw a wrench into anything that we do. I mean, this obviously, it’s retribution for the decision on the court,” Thune said about the decision to come back next week to finish work on a continuing resolution.
Asked how much cooperation he expects in day-to-day Senate functions, Sen. John Cornyn (R-Texas), an adviser to Senate Majority Leader Mitch McConnell (R-Ky.), formed a zero with his hand.
“Remember Kavanaugh? This will be that on steroids,” he added, referring to a contentious fight in 2018 over the confirmation of Supreme Court Justice Brett Kavanaugh.
Republicans are preparing to try to confirm Trump’s nominee before Nov. 3, which would set a record for the closest to a presidential election that a Supreme Court nominee has been confirmed. Though previous high court picks have been confirmed in fewer days, they were further out from a presidential election.
The fight has already led to a round of rhetorical bomb throwing.
During a floor speech, Senate Minority Leader Charles Schumer (D-N.Y.) said McConnell had “defiled the Senate.”
“This is how our vaunted traditions of bipartisanship and compromise — on life support before now — end. This is how. By one side … deciding that the rules don’t apply to them, even their own rules. … If my friends on the Republican side want that kind of Senate, they can follow Leader McConnell down the very dangerous path he has laid down,” Schumer said.
The decision by McConnell, announced within hours of Ginsburg’s death, to hold a vote on filling the seat sparked immediate calls for escalation from some progressives who pushed for nixing the 60-vote legislative filibuster and expanding the Supreme Court should Democrats win the Senate majority and the White House in November.
Though Democratic leaders have tamped down talk for now, they say the decision by Republicans to move forward has shaken their faith in some of the institutional pillars of the Senate, which has historically been driven more by relationships than the majority-run House.
Asked how he was feeling about the state of the Senate, Sen. Tim Kaine (D-Va.) said, “Oh, I’ve felt better.”
“I think this rushed process is going to do serious damage to the Senate as an institution,” Kaine said. “I think this power play is we don’t care about the institution.”
Thune defended the GOP decision to move forward with the Supreme Court nomination but acknowledged the Senate could function better. The key to that, however, he said was a “behavioral change,” not a rules change, when it comes to legislation.
“I do think that we could do both sides, what are we going to do to make this legislative process work more smoothly,” Thune said, adding that eliminating the legislative filibuster would “move us away from the kind of cooperation.”
The bad blood between the parties over the courts preceded Trump’s presidency. Republicans argue the current brinkmanship can be traced to the decision by then-Majority Leader Harry Reid (D-Nev.) to get rid of the 60-vote filibuster for executive nominations as well as district and circuit court nominees.
But Democrats scoff at the idea that McConnell, once back in power, would not have done the same when it was convenient and note that he got rid of the same hurdle for Supreme Court nominees in 2017. Republicans have also been willing to move circuit court nominees over the objections of both home-state senators, even after using procedural tactics to fill empty seats during the Obama administration.
As nominations have become increasingly divisive, they’ve also moved to the forefront of the Senate’s floor schedule. Of the 195 roll-call votes taken so far by the Senate this year, 56 were related to legislation, 20 were related to Trump’s impeachment trial and the rest were tied to nominations.
“We are in a place in the Senate that is frankly weird,” said Sen. Sheldon Whitehouse (D-R.I.), noting the lack of legislation that gets debated on the floor.
Sen. Mike Braun (R-Ind.), asked if he thought the Senate was functioning properly, said that the “only thing that seems to function well here is appointments.”
“I think the reason it doesn’t function as well as a lot of people would like to see it is because the ideas are so divergent,” Braun added on the legislative pipeline. “When it comes to anything legislatively, it took 10-12 years to get criminal justice reform across the finish line.”
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