On eve of Trump's Supreme Court announcement, Senate Democrats prepare to filibuster any nominee: “This is a stolen seat"

Democrats have awoken from their post-election slumber and vow Trump's nominee will need 60 votes to be confirmed

Published January 30, 2017 7:22PM (EST)

 (Getty/Dominick Reuter/Reuters/Larry Downing/Salon)
(Getty/Dominick Reuter/Reuters/Larry Downing/Salon)

Senate Democrats were clearly shocked by the election, initially wary of adopting the obstructionist stance held by Senate Republicans shortly after Barack Obama first assumed office. But as millions of their constituents took to the streets to demonstrate Donald Trump's election, inauguration and now policies, the demoralized opposition party is finally starting to wake up to the loud voices demanding an actual opposition.

Several congressional Democrats, many missing from last weekend's historic Women's March, rushed to stand by protesters at airports across the country over the weekend — loudly declaring their opposition to Trump's executive order temporarily banning travel from seven majority Muslim nations and the U.S. refugee resettlement program. After a weekend of chaos following his incompetently rolled out ban, President Trump attempted to deflect the heat by announcing that he will unveil his first Supreme Court nominee two days earlier than initially planned, in a primetime address Tuesday:

The announcement will come just short of one year after the death of Justice Antonin Scalia. On the eve of Trump's Supreme Court announcement, some Democrats are already making clear they plan to filibuster any Trump nominee after Republicans refused to even hold a hearing for Barack Obama's pick to succeed Scalia.

“This is a stolen seat. This is the first time a Senate majority has stolen a seat,” Sen. Jeff Merkley, D-Oregon, told Politico Monday, referring to the Senate Republican majority’s refusal to consider the nomination of Merrick Garland. “We will use every lever in our power to stop this,” he vowed.

Senate Minority Leader Chuck Schumer, D- New York, also vowed to fight "tooth and nail" against any of Trump's nominees that aren't "mainstream." Reportedly, Appellate Judges Neil Gorsuch and Thomas Hardiman  are the top choices, and both were unanimously confirmed to their spots on their respective courts. Gorsuch is said to be a copy of Scalia, while Hardiman is more like Justice Samuel Alito.

In a surprisingly preemptive move, House Minority Leader Nancy Pelosi, D-California, issued a "Dear colleague" Sunday to urge all House and Senate Democrats to join her for a rally in front of the Supreme Court Monday.

Democratic lawmakers will be missing votes in both chambers in order to attend the protest. The House is scheduled to vote on a series of natural resources bills on Monday at 6:30pm ET. The Senate is also scheduled to vote Monday night on the confirmation of Trump's nominee for Secretary of State, former ExxonMobil CEO Rex Tillerson.

Sen. Amy Klobuchar, D-Minnesota, also reminded her Twitter followers on Sunday night that Supreme Court nominees can still be blocked by the Senate minority, unlike all other executive and judicial nominees:

If Senate Democrats hold together and refuse to vote for cloture on Trump’s Supreme Court nominee, it could force Senate Majority Leader Mitch McConnell, R- Kentucky, to invoke the so-called “nuclear option” that would eliminate the filibuster as a tool to block Supreme Court justices. In 2013, Senate Democrats invoked the “nuclear option” and changed Senate rules to eliminate the filibuster for lifetime judicial appointments to the federal circuit courts.

McConnell, however, has no plans to change the rules to get the President’s nominee confirmed, sticking to the belief that it’ll take two-thirds, not a majority, to eliminate the filibuster for SCOTUS nominees.

"It takes 67 votes to change the rules in the Senate. We saw one rather conspicuous exception to that a few years ago but no we don’t have any current plans on the rules,” he told The Hill one day after Trump told Fox News' Sean Hannity that he expects Senate Republicans to strip Democrats of the power to filibuster Supreme Court nominees if they attempt to block his pick.

By the current rules, Trump's nominee will need at least 60 votes in order to be confirmed. The Senate is currently made up of 52 Republican senators, 46 Democratic senators, and two left-leaning Independent senators. Democrats have the 41 votes needed to block Trump’s nominee confirmation.

Conservative groups are already gearing up for a fight, however. The Judicial Crisis Network has said it will spend $10 million to ensure Trump’s pick is confirmed by pressuring vulnerable Democratic Senators.

“We will force vulnerable senators up for re-election in 2018 like Joe Donnelly and Claire McCaskill to decide between keeping their Senate seats or following Chuck Schumer’s liberal, obstructionist agenda,” said Carrie Severino, the chief counsel and policy director of the group.

Donnelly, D- Indiana, and McCaskill, D-Missouri, both represent states that Trump won with more than 55 percent of the vote.

The Heritage Foundation warned against Democratic obstruction, suggesting that if Republicans eliminate the filibuster for Trump's Supreme Court nominee it could set a precedent for getting rid of the legislative filibuster, which has been used successfully by both parties, when in the minority, to block legislation.

In a new memo, Heritage pushed another strategy for getting around the filibuster called the “two-speech rule.” The idea is to use Senate rules allowing senators only two speeches in a legislative day, which is different from a calendar day. By extending a legislative day over several days or weeks, Republicans could wait until all Democrats had given their two speeches and none were left to speak, allowing the Senate to move to a simple majority vote.

By Sophia Tesfaye

Sophia Tesfaye is Salon's senior editor for news and politics, and resides in Washington, D.C. You can find her on Twitter at @SophiaTesfaye.

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