As Democratic senators begin mapping out how they will wield their limited procedural weapons in the fight over President Trump’s Supreme Court nominee, they are grappling with a central question: How much legitimacy do they give his candidate?
In a sense, they are playing the role of the GOP in 2016, when most Republicans outright ignored Merrick Garland — declining to meet with Barack Obama’s final Supreme Court pick as Democrats staged events, showed off the paperwork filed by Garland and even held a semi-mock confirmation hearing in an effort to move his nomination process along.
Democrats also point to polling indicating that the public sides with them on timing. According to a Washington Post-ABC Poll released Friday, 57 percent of Americans say the successor to the late Justice Ruth Bader Ginsburg should be chosen by the winner of the November election, while 38 percent say the choice should be nominated by Trump and confirmed by the current Senate.
But in the Senate, Democrats are not in the majority, and Republicans have 51 senators in favor of at least proceeding with the nomination process and holding a confirmation vote before the Nov. 3 election. Facing that difficult obstacle, Democrats are weighing skipping courtesy visits with the nominee, while being fiercely pressured by the base to go as far as boycotting the confirmation hearing.
“We believe Democrats need to demonstrate that this is an illegitimate process, and all options to do so should be on the table,” said Christopher Kang, the chief counsel for Demand Justice, one of the more prominent advocacy groups on the left battling Trump’s judicial nominees.
Trump has told people around him that he plans to name Barrett, a judge on the U.S. Court of Appeals for the 7th Circuit, as his nominee at a White House ceremony on Saturday. Administration officials and campaign advisers were preparing for a Barrett announcement, and some remarks for the president disclosing her as his choice have already been written, according to officials familiar with the matter.
One of the first strategic decisions will be whether to give the nominee her standard courtesy visits, many of which occur before a confirmation hearing, particularly with members of leadership and of the Judiciary Committee. Some, like Sen. Richard Blumenthal (D-Conn.), have said they won’t meet with the nominee.
“This is not normal because Trump and my Republican colleagues have robbed this process of any legitimacy,” Blumenthal said in an interview Friday. “The selection of the next justice should be done by the next president and the next Congress.”
A spokesman for Sen. Dianne Feinstein (Calif.), the ranking Democrat on the Judiciary Committee, said he could not comment on a potential meeting when there was no nominee.
Aides to most Democratic senators on the Judiciary Committee did not return a request for comment on whether they planned to meet with the nominee, although a spokesman for Sen. Mazie Hirono (D-Hawaii) confirmed that she will not meet with the nominee. Among those whose offices did not comment was Sen. Kamala D. Harris (Calif.), the party’s vice-presidential candidate who is a member of the committee that will hold the Supreme Court confirmation hearings.
Sen. Susan Collins of Maine, one of just two Republicans who oppose confirming a new justice before Election Day, would meet with the nominee if she requested it, according to an aide.
Some moderate Democratic senators may be inclined to sit down with the nominee, although a robust debate about whether to do so has percolated through the Democratic caucus in recent days, according to officials familiar with the discussions.
Other Democrats took umbrage with the White House’s effort to schedule meetings between the nominee and Democratic and Republican senators on the Judiciary Committee before the nominee had been named, and before memorial services had concluded for Justice Ruth Bader Ginsburg, whose death last week created a vacancy on the high court.
“This entire process is unprecedented and offensive, but it is especially unseemly to be scheduling meetings even before Justice Ginsburg has been interred with her husband at Arlington National Cemetery,” Sen. Patrick J. Leahy (D-Vt.), the former chairman of the committee, said Friday.
Senate Minority Leader Charles E. Schumer (D-N.Y.), who will be observing the Yom Kippur holiday Sunday and Monday, may not announce whether he or other senior Democrats will welcome Trump’s choice into their offices until Tuesday.
The comments from some Democratic senators that they will decline to meet with the eventual pick drew criticism from the White House.
“The president has not even put forward a nominee yet,” said White House spokesman Judd Deere. “This is pure politics from Senate Democrats and shows they do not take their constitutional duty to advise and consent seriously.”
Democrats say they have not made any final decisions about how much attention to show the nominee and the overall process. Some liberal activists want them to use a range of tactics that, at first glance, might delay the process — yet could also make it easier for Senate Majority Leader Mitch McConnell (R-Ky.) to confirm the nominee.
Once the nominee gets to the hearing stage of the process, Democrats must decide whether to essentially protest the entire nomination and largely refuse to participate, or to engage and try to expose flaws in the judge’s background during what would probably be more than a dozen hours of questioning over two days.
Some activists are pushing Democrats to either boycott the hearings completely, or to use a rare maneuver to short-circuit the hearings after just two hours.
But Senate veterans know that each of those decisions is fraught with peril, given that it will open up countermoves by Senate Judiciary Committee Chairman Lindsey O. Graham (R-S.C.) and McConnell that could only accelerate the process to confirmation.
Though some Democratic senators off the committee and activists had floated the idea of a hearing boycott, there was little appetite to do so among most Democrats who actually sit on the Judiciary Committee, according to Democratic officials.
“I intend to go to the hearings and participate,” Blumenthal said. “I believe all of my Judiciary colleagues will.”
If Democrats refuse to attend the hearings, Republicans would probably speed through a couple hours of friendly questions, not challenging the nominee’s background or past rulings, then adjourn the hearings and move toward a committee vote.
A boycott would also deprive Harris, who has drawn much attention for her rigorous interrogation of Trump nominees, of using her questioning to serve as a boost in her dual role as Democratic presidential nominee Joe Biden’s running mate.
Instead, veteran Democrats will push to extend the questioning as far into the two days as Graham will allow, focusing on issues that might illustrate to the public how much a new conservative justice could tilt the court to the right.
The other option — using their ability to cut short committee meetings at just two hours — would be likely to produce high drama. But it would also result in just four hours of questioning of the nominee, half of that time coming from friendly Republicans.
A number of Democrats — from liberals such as Sen. Elizabeth Warren (Mass.) to moderates such as Sen. Michael F. Bennet (Colo.) — have publicly stated that they want to use the confirmation process to highlight the outcome of a conservative replacing Ginsburg, particularly on health care. Some Democrats have argued privately that the best way to highlight that issue is at a confirmation hearing that will be watched by millions of voters.
“What a bitter irony that at this moment, in the middle of a raging pandemic, Senator McConnell can’t even be bothered to come to the negotiating table to work on a covid-19 relief package,” Sen. Richard J. Durbin (D-Ill.) said this week. “But it seems he’ll spare no effort to rush through a nominee to sit on the Supreme Court when Republicans try to wipe out the critical health care protections in the Affordable Care Act.”
Josh Dawsey contributed to this report.