It was quickly dismissed by Senate Democratic leadership as unhelpful. Republicans could still hold her confirmation hearing, but Democrats wouldn’t be able to ask her tough questions.
Any other maneuvers available to them to delay things would have pushed the hearing back by a few hours or a day, at most — not enough to push Republicans’ speedy timeline past the election. (And even if the vote to confirm Barrett had to be scheduled after an election where Republicans lost power, what’s stopping them from confirming her in the lame duck session?)
So even though Democrats acutely felt heat from the left to resist, there was not much they could do. Vice-presidential nominee Sen. Kamala D. Harris (D-Calif.) and others did call the hearings “illegitimate,” but they participated — without even using small parliamentary objections to ruffle Republicans and delay things for a few minutes as they did with Justice Brett M. Kavanaugh’s hearing in 2018.
Which brings us to Thursday and Democrats’ one symbolic move to boycott the actual vote in committee to send Barrett’s nomination to the whole Senate floor.
They held a news conference on the steps of the U.S. Capitol shortly after Republicans voted instead.
“We are not going to have business as usual while the Republicans try to use an illegitimate process to jam through a nominee to rip away health care from millions,” Senate Minority Leader Charles E. Schumer (D-N.Y.) tweeted.
Their boycott didn’t change the vote and made that part move faster. Republicans control the majority in this committee and have everyone back in person after several coronavirus infections and/or quarantines. An in-person majority vote is all that’s needed for the committee to give its stamp of approval to Barrett and send her nomination to the full Senate floor. And that’s what they did minutes after gaveling in Thursday morning.
Senate Majority Leader Mitch McConnell (R-Ky.) is setting up to vote on Barrett’s confirmation early next week, which also needs a majority of Republican votes, which he seems to have. That means she could be seated on the court in time for the election or shortly after.
So Democrats’ empty chairs for a brief committee vote Thursday morning was nothing but a symbolic gesture to the left that they are listening and frustrated, too.
But it’s a gesture they apparently deemed necessary after fully participating in several days’ worth of hearings last week.
In the days after Ginsburg’s death, grass-roots donors were giving millions to Democratic fundraising websites. Democratic voters were signaling that this Supreme Court confirmation was a major factor in their vote for president, usually the domain of conservatives: A CBS/YouGov poll in North Carolina shortly after Trump nominated Barrett found 69 percent of likely voters saying the court is a major factor in their vote for president, below the economy and health care.
The risk for Democrats is the same today as it was in the days after Ginsburg died. They are wielding this vacancy to try to get Democrats to the polls, but they also can’t do anything to stop it. They are wielding the court’s impact on health care to get Democrats to the polls, but they can’t they do anything to stop an ultraconservative Supreme Court from deciding to take down Obamacare. The court, probably with Barrett on it, will hear a case on this the week after Election Day.
Democrats can talk about what they would do if they were in power with the Senate majority and the White House. There are a number of governing changes some in their party are pushing. But the party hasn’t coalesced around anything.
Democratic nominee Joe Biden has so far been unwilling to entertain major changes to the court, such as filling it with more justices, that could shift the court to the left. Plus, any of those changes would come well after the court decides what to do on Obamacare.
Even under pressure from the left to consider it, he split the difference. He said in a new interview with “60 Minutes” that he would create a bipartisan commission to spend six months studying what to do once he’s president. Another change he seemed more open to in a recent town hall was term limits for justices.
Democrats want their voters to know they’re fighting this Supreme Court confirmation. But they just don’t have many options with which to fight.