This comes down to leadership. Senate Dem leaders could take a stand and station one senator on the floor at all times to object, forcing McConnell to jump through interminable hurdles & produce 51 votes - twice - for each nominee, likely resulting in fewer lifetime Trump judges.
I laid out some of the procedural tools Dems could use here. It's not that complicated: basically, all Dems would have to do is have one Senator on the floor at all times. It doesn't even have to be the same senator - they can rotate as often as they want.
To be clear, doing this would *not* block all of the judges confirmed under this agreement.
But it *would* force McConnell to run through the time-consuming "cloture" process for each nomination, and produce 51 recorded votes twice for each nominee. This has a few advantages:
But it *would* force McConnell to run through the time-consuming "cloture" process for each nomination, and produce 51 recorded votes twice for each nominee. This has a few advantages:
First, instead of giving their consent to instantaneously confirming all of these Trump judges- as Dems are doing under this agreement- they'd be recording their opposition to these nominees and to the ability of a POTUS implicated in federal crimes to make lifetime appointments.
Second and more importantly, Dems would have a real shot at blocking some of these Trump judges.
As is, McConnell doesn't have to produce a single vote to confirm a single one of these Trump nominees. In effect, Dems are letting them all be confirmed by acclamation.
As is, McConnell doesn't have to produce a single vote to confirm a single one of these Trump nominees. In effect, Dems are letting them all be confirmed by acclamation.
By having one senator on the floor to object, Dems could force McConnell to produce 51 votes often late at night and early in the morning. McConnell only has 51 votes, and he has attendance issues. If he fell short of 51 one time, the judge in question would be blocked.
I just want to emphasize the asymmetry here. Dems would only need to have *one* senator on the floor. McConnell would have to produce 51 votes.
Rather than organize this, the Senate Dem leader gave McConnell consent to instantly confirm 7 Trump judges to lifetime appointments.
Rather than organize this, the Senate Dem leader gave McConnell consent to instantly confirm 7 Trump judges to lifetime appointments.
I want to be careful not to overclaim.
Would all of the judges in question get confirmed if Dems had put in this effort? Maybe. Would at least one Trump judge be blocked from a lifetime appointment if McConnell was forced to produce 51 votes twice for all of them? Probably.
Would all of the judges in question get confirmed if Dems had put in this effort? Maybe. Would at least one Trump judge be blocked from a lifetime appointment if McConnell was forced to produce 51 votes twice for all of them? Probably.
This outcome was predictable when McConnell said he was "cancelling recess." He whipped his troops and got them to accede to the "cancellation." Then he used the "cancellation" to extort this agreement, likely pocketing more Trump confirmations than he would have otherwise.
That's the basic lesson here. Power in the Senate is diffuse. Senate rules give the leaders virtually zero power. The power comes from norms, obedience and persuasion.
If you can get senators behind you, you can wield a lot of power.
If you can't, you're... not a real leader.
If you can get senators behind you, you can wield a lot of power.
If you can't, you're... not a real leader.
To @jljacobson's point, these confirmations are donezo. All these nominees are now officially confirmed to lifetime appointments. No take-backs, no do-overs.
I'm laying out what could have happened.
I'm laying out what could have happened.
A couple points in response to questions and comments:
The Dem senator blocking the confirmations would not necessarily have to speak or hold the floor - to force McConnell to hold recorded votes, they'd literally just have to be on the floor to occasionally say "I object."
The Dem senator blocking the confirmations would not necessarily have to speak or hold the floor - to force McConnell to hold recorded votes, they'd literally just have to be on the floor to occasionally say "I object."
Second, this is a collective action issue. Any individual senator alone could only force recorded (i.e. majority threshold) votes as long as they could physically stay on the floor.
The potential power lies in organizing a rotation to cover the floor, which requires leadership.
The potential power lies in organizing a rotation to cover the floor, which requires leadership.
Third, unlike with a talking filibuster, senators don't have to control the floor which makes the rotation easier. The senator covering the floor could sit at their desk reading a magazine as long as they said "I object" on cue. When the next senator arrives, they leave.
Fourth, not to belabor the point, but it only takes one senator to object - so you could organize the rotation so that 2018ers can stay on the trail. Senators who live within driving distance of DC and/or are not up for re-election could take most or even all of the shifts.
If you really want to nerd out, the feasibility of something like this plan is demonstrated by what Senate Republicans did during the latter half of the Obama administration to keep the Senate technically in session during recesses to prevent recess appointments.
Last point before bed: the power of Senate leaders does not come from rules since Senate rules vest virtually no power in leaders. The power comes from leadership's virtual monopoly control of information about the floor and control of scenarios presented to the caucus.
Pasting in this thread so folks can evaluate for themselves.
Re: the previous tweet, "renominated" means the nominee was an Obama nominee blocked by McConnell. So McConnell created his own leverage by spending years blocking Obama noms, cancelling recess and now convincing Dems they should be thankful for his largess.
Coda to this because I've been thinking about it a lot and I know hard-working, dedicated people in the Senate are working hard on noms. I want to emphasize that I'm not claiming this plan will let Ds block all or even most Trump judicial nominees - maybe even none at all!
BUT:
BUT:
1. Since Rs only have 51 votes, if you force McConnell to bring 51 real live votes to the floor for every nom, often at weird hours, you're likely to win a few. For instance, one of the judges Dems helped confirm yesterday was rated unqualified by the ABA. newsok.com/article/560632…
... and given the outsize impact that judges have on people's daily lives, blocking one extreme or unqualified Trump nominee from a lifetime appointment to the federal bench is probably worth the effort.
2. Fundamentally, this is about whether Dems have the will and discipline to marshall an effort comparable to what Republicans have been bringing to the table on judges for decades. This piece is a good and timely read on that topic. nytimes.com/2018/08/22/mag…
McConnell uses every opportunity to build leverage, even creating it out of thin air- e.g., cancelling recess. Dems don't. So when it's time to cut a deal, they come to the table with less leverage and end up arguing that crappy deals like yesterday's are the best they could do.
3. I've said this in previous threads but this also hinges on a more aggressive effort to stop Dems from voting for extreme Trump judges. It's a question of overall posture and effort. For instance, six Ds voted to confirm the aforementioned judged ruled "unqualified" by the ABA.
Goodwin is a good example. He only got 46 R votes. Six Dem votes provided his margin of victory for a lifetime appointment.
If Dems withheld their votes, this Trump judge ruled "unqualified" by the ABA would not be on the federal bench today.
Doesn't seem like a lot to ask.
If Dems withheld their votes, this Trump judge ruled "unqualified" by the ABA would not be on the federal bench today.
Doesn't seem like a lot to ask.
And the idea that voting for a judge like Goodwin is critical to the re-election priospoects of red staters is silly.
It should not be hard to explain voting against a non-home state judge who was ruled "unqualified" by the independent ABA due to questions about his work ethic.
It should not be hard to explain voting against a non-home state judge who was ruled "unqualified" by the independent ABA due to questions about his work ethic.
Sorry to be annoying but cross-posting this here for continuity.
