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How the Senate can Slow Down the Amy Coney Barrett Nomination

Donald Trump is moving at an unprecedented speed to replace Supreme Court Justice Ruth Bader Ginsburg with Amy Coney Barrett, a far-right extremist who would overturn Roe v. Wade and repeal the Affordable Care Act, stripping health care from millions of Americans. While Barrett is uniquely unfit to replace Ginsburg, we cannot lose sight of the fact that this entire process is an illegitimate sham and a continuation of the conservative takeover of the courts. 

There is no procedural silver bullet….

It’s critical that Democrats delay the process anyway. No Supreme Court justice has ever been confirmed this close to an election, and now is no time to start. Republicans have already explicitly said that they want to install a ninth justice before the election so that they can hand Trump a victory this November. That’s why Senate Democrats must do everything in their power to slow down this confirmation process. 
While we expect Senate Democrats to do everything in their power to slow down this nomination, there is no procedural silver bullet that will bring this confirmation process to a halt. The longer they stall, the more time we get to pressure Senate Republicans, who are in control of the timeline, and demand they REFUSE to consider any Supreme Court justice until the next president is inaugurated.

Call your Senators now and demand they REFUSE to consider any Supreme Court Justice until the new president is inaugurated.

Supreme Court Justice Ruth Bader Ginsburg, a champion for civil rights and gender equality, passed away on September 18. We cannot let Donald Trump destroy her legacy by replacing her with a justice from his shortlist of conservative extremists. Read about why Amy Coney Barrett is unfit to replace Justice Ruth Bader Ginsburg, then call your Senators and demand they refuse to consider any Supreme Court Justice until the new president is inaugurated.

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What Senators can do

While the House was meant to be more representative of voters, the Senate was created to be more deliberative. There are tactics Senate Democrats will attempt to use to their advantage to slow down the Supreme Court nominee’s confirmation process. This resource does not cover everything Senate Democrats can do to slow down the process, but offers a brief overview of what’s possible. 

What about the filibuster?

The filibuster is a simple procedural mechanism that allows the minority party to block legislation from advancing in the Senate. The filibuster is the ability to keep debate open on a legislative item until the Senate votes to close it. Closing debate requires 60 votes, instead of the usual 50, and if you don’t have 60 votes, you can’t move to final voting. However, in 2017, Senate Majority Leader Mitch McConnell eliminated the filibuster for Supreme Court nomination proceedings after his predecessor Harry Reid (D) eliminated the filibuster for federal judgeships. 

Slowing Down Senate Proceedings

While Democrats are unable to filibuster Supreme Court nominees, they do have a variety of tools they can use to slow down proceedings in both committee and on the floor. They include:

  • Withholding Consent: The Senate works on unanimous consent, meaning they assume procedures that require a vote are passed with unanimous consent. Any Senator can object and force a vote. You can read more about withholding consent in our explainer.
  • Quorum Roll Calls: The Senate requires a quorum to conduct business. It is assumed that there is a quorum but Democratic Senators can object and force a roll call.
  • Raising Points of Order: Senators can object at any time when they feel a rule has been violated. Once the Presiding Officer passes judgement on if a rule has been breached, Senators can object to the ruling and force a vote. Democratic Senators could force votes on any number of rules to delay proceedings.

Forcing the Senate to take up other business

Under Senate norms, the majority party has complete control of the agenda. However, there are certain measures that could require the Senate to take action. Through these mechanisms, Democrats could force Senate Republicans to temporarily pause proceedings on the nomination and focus on the following:

  1. Force a cloture vote: Technically, any Senator can force a vote on a bill that has been introduced but don’t because it could grind Senate business to a halt. Democratic Senators can use this rule to delay the nomination proceedings and force votes. Senator Schumer used this tactic to force a vote on a bill to protect people with pre-existing conditions if the Supreme Court strikes down the Affordable Care Act.
  2. Short-term funding: The House could insist on passing further budget-related measures which the Senate would need to vote on.
  3. War Powers Resolutions: The Senate generally has to take up WPRs within a certain number of days or any senator, including the minority party, can move to proceed.

What you can do

Ultimately, Republicans hold the majority and they control the process. We believe that Democrats will do everything in their power to delay Amy Coney Barrett’s nomination, but our energy is best directed at pressuring Republicans to do the right thing and block this nomination from going forward until the next president is sworn into office.

Senate Democrats will be mainly stopping the Senate from using unanimous consent to slow down the nomination process. If you have a Democratic Senator, call and tell them you support them using all means necessary to slow down the nomination. If you have a Republican Senator, call and demand they REFUSE to consider any Supreme Court Justice until the new president is inaugurated.