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Poiuyt

(18,087 posts)
Sun Sep 20, 2020, 01:42 AM Sep 2020

What are the Democrats options re: Supreme Court?

A lot of people have discussed court stacking and a few other things, but I hadn't heard about the possibility of a lawsuit:

Lawsuit: Nobody seems to be discussing this option, but this is where we think the real opportunity is for Team Blue. Let's start with a couple of absurd examples. Imagine that McConnell declares that all deliberation on SCOTUS nominees will be done in the men's locker room of the Senate gym. Or maybe he says deliberation will be done in six feet of water, such that only members 6'4" or taller will be able to breathe. These things, if they did happen, would be obvious abuses of his discretionary authority as Senate Majority Leader. Put another way, McConnell has a lot of power, but there are limits to what he can do, over and above what is spelled out in the rules of the Senate.

Meanwhile, keep in mind that in the Senate, precedents are binding. It has always been this way because the very first senators and representatives operated in the tradition of the English parliament and of English common law. This fact is what makes the filibuster-killing "nuclear option" possible; if the 60-vote filibuster is overturned once on a point of order (which requires just 51 votes), then a new precedent is established and it's overturned forever.

Taking these things together, the Democrats could argue that when he applied the McConnell Rule to Merrick Garland, the Majority Leader established a precedent that is just as binding as an actual Senate rule. Senate Parliamentarian Elizabeth MacDonough might (or might not) be asked to weigh in, but she would likely agree. Either way, Senate Democrats could file a lawsuit in federal court arguing that by disregarding the McConnell Rule, McConnell is guilty of an abuse of his discretionary authority. It's plausible that the Democrats might even prevail on the merits. More importantly, however, as we have learned many times in the past four years (see taxes, Donald Trump's; subpoenas, congressional), it generally takes a while for the various levels of the Court system to make their rulings. Toss in the holiday season, when the courts are closed, and it's entirely possible that such a lawsuit could run out the clock on Donald Trump's term if he is not reelected.

https://electoral-vote.com/
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What are the Democrats options re: Supreme Court? (Original Post) Poiuyt Sep 2020 OP
Unanimous Consent might be one tool, but Democrats don't like to use it. cayugafalls Sep 2020 #1
The Hague RainCaster Sep 2020 #2
When Biden takes office, with the control of the Senate, RDANGELO Sep 2020 #3
The only solution is political BainsBane Sep 2020 #4
Not a chance in hell Azathoth Sep 2020 #5
Can you expand upon this "total war" scenario? Frasier Balzov Sep 2020 #6
democrats in the Senate at this moment have no options or power as long as beachbumbob Sep 2020 #7
Democrats need to play hardball when they question the nominee. kentuck Sep 2020 #8
It's all about flipping the Senate Buckeyeblue Sep 2020 #9
Eh Cosmocat Sep 2020 #10
I'm not convinced it's a done deal. Buckeyeblue Sep 2020 #11

cayugafalls

(5,631 posts)
1. Unanimous Consent might be one tool, but Democrats don't like to use it.
Sun Sep 20, 2020, 01:47 AM
Sep 2020
Since the chamber largely runs on unanimous consent, any Democratic senator could, for instance, gum up the works of the Senate by objecting to everything else McConnell wants to do, forcing Republicans who are up for reelection to spend additional time casting procedural votes.


https://www.rollcall.com/2020/09/19/democrats-focus-on-scotus-messaging-not-on-stalling-the-senate/

RainCaster

(10,682 posts)
2. The Hague
Sun Sep 20, 2020, 01:48 AM
Sep 2020

Many European countries have expressed interest in monitoring our elections because of the seriously huge amount of ratfucking going.
Seriously, can we expect SCOTUS to monitor their own?

RDANGELO

(3,430 posts)
3. When Biden takes office, with the control of the Senate,
Sun Sep 20, 2020, 01:49 AM
Sep 2020

he nominates four justices. That would give them a 7 to 6 advantage.

BainsBane

(53,001 posts)
4. The only solution is political
Sun Sep 20, 2020, 01:52 AM
Sep 2020

The constitution gives the president the right to appoint a nominee and the Senate the right to confirm. I don't see how any lawsuit could prevail.

The only leverage we have is that several Republican Senators are in close races, and they don't want to lose. We have to loudly and strongly make our political will known.

Azathoth

(4,603 posts)
5. Not a chance in hell
Sun Sep 20, 2020, 01:59 AM
Sep 2020

The lawsuit would be tossed on Day 1, and even if it somehow.wasn't, McConnell would simply ignore the whole thing and he would be right to do so. The Courts don't decide Senate procedure, and they certainly can't issue an injunction stopping the Senate from holding a vote. And to the article's example, yes, McConnell and a majority of the Senate could change the rules to say deliberations will be held in the men's locker room or a pool of water, and there isn't a single thing any court could do about it. That's bedrock constitutional crisis stuff.

The Court is gone. The seat will be filled the day after the election. All that remains is for Dems to decide whether they're ready to declare total war or not. Lawsuits ain't gonna cut it.

Frasier Balzov

(2,598 posts)
6. Can you expand upon this "total war" scenario?
Sun Sep 20, 2020, 03:25 AM
Sep 2020

What is the battleground and what are the implements you envision?

 

beachbumbob

(9,263 posts)
7. democrats in the Senate at this moment have no options or power as long as
Sun Sep 20, 2020, 07:47 AM
Sep 2020

McConnel has support of 50 GOP votes as a tie breaker is Pence. The ONLY HOPE is to have FOUR GOP senators find an ounce of integrity AND honor to come out and say NO vote until 2021.. I am about 99% certain that will not happen.

kentuck

(110,950 posts)
8. Democrats need to play hardball when they question the nominee.
Sun Sep 20, 2020, 07:53 AM
Sep 2020

They need to skin them right down to the bone and find out what their positions are - that are important to the people.

They need hard, penetrating questions that address our Constitution and our institutions.

We do not join those that believe you have to burn down the village in order to save it.

Our country and our democracy are important to us.

Buckeyeblue

(5,491 posts)
9. It's all about flipping the Senate
Sun Sep 20, 2020, 09:19 AM
Sep 2020

I don't think there will be a vote to confirm until the election is over. If we flip the Senate there will be no vote. That would ensure the filibuster would be eliminated and the court would be expanded. And the Democrats would spend two years passing their legislative agenda.

Cosmocat

(14,543 posts)
10. Eh
Sun Sep 20, 2020, 09:27 AM
Sep 2020

Even MORE so they will jam it through starting November 4 if 46 is elected.

This is a done deal, it is only a matter of how team D reacts to it if on November 4 Joe Biden is potus and has a democratic senate and house to work with.

Buckeyeblue

(5,491 posts)
11. I'm not convinced it's a done deal.
Sun Sep 20, 2020, 11:18 AM
Sep 2020

I think the Republicans are moving forward as if they will confirm. But I think part of that is to see the reaction. We'll just have to see.

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