As I noted in an update here, MSNBC’s Chris Matthews is confident that Democratic parliamentarians in the Senate can find some way to prevent a confirmation vote on whoever President Trump nominates. Looking around, I’ve seen only one suggestion detailing a mechanism which would actually make this possible. The key is preventing Republicans from forming a quorum. From Yahoo News:
Earlier this month, University of Miami political scientist Gregory Koger, a specialist in filibustering and legislative obstructionism, explained on Vox.com that, according to Article 1, Section 5 of the U.S. Constitution, “a majority… shall constitute a quorum to do business” in the Senate — meaning that Democrats can basically shut the place down by refusing to vote on anything.
With only the barest 51-vote majority — and one of their own, Arizona Sen. John McCain, on extended leave in Arizona as he grapples with what is likely to be terminal brain cancer — Republicans would have difficultly mustering a quorum without at least some Democratic help. “In the month of June, there have been an average of 1.8 Republican absences across 18 roll call votes,” Koger wrote, “so even if McCain returned to the Senate, the majority would struggle to consistently provide a floor majority.” If McCain doesn’t return, and all 49 Democrats refuse to participate, the 50 Republican senators left in Washington would fall one short of a quorum. (The Senate precedents on quorums do not mention whether Vice President Mike Pence could contribute a 51st vote.)
In that case, “the Senate can do nothing,” Koger concluded. “No bill can pass, no amendment can be decided on, no nominations can get approved.” The Senate would screech to a halt for lack of a quorum — and Democrats could conceivably delay a confirmation vote until a new Senate, perhaps with a narrow Democratic majority, is seated next January.
Asked to confirm that Democrats could use the quorum rule to block Trump’s Supreme Court nominee indefinitely, Koger tells Yahoo News the answer is “technically yes,” assuming that the word “majority” in the Constitution means “51 votes, not 50” and that the vice president can’t “vote to make a majority.”
Will the Democrats attempt this? They’ll probably be pushed to do so by the base, but there’s an obvious problem. What happens to the Democratic Senators running in red states if they join the left and shut down all Senate business? Say that Sen. Schumer can somehow convince the moderates to take one for the team and do this. That only creates a stalemate until the election is over and new Senators are seated. But going all in on obstructionism makes Dems’ chances of taking back the Senate this fall less likely. If just one or two of those red state Senators lose, the GOP probably gets its quorum back and thus a vote on its nominee in January.
And if just one Democrat, maybe Heitkamp or Manchin, decides to think about their own constituents back home rather than what the left wants, then the Democrats fail even before the election.
So this maneuver is risky and likely to fail. No doubt it would thrill the left in California and New York, but it’s going to be awfully tough to explain it to far more moderate to conservative voters in West Virginia and North Dakota.