Gaius Publius: How to Block the Trump Nomination: Shut Down the Senate

By Gaius Publius, a professional writer living on the West Coast of the United States and frequent contributor to DownWithTyranny, digby, Truthout, and Naked Capitalism. Follow him on Twitter @Gaius_Publius, Tumblr and Facebook. GP article archive  here. Originally published at the DownWithTyranny

Imagine this room half empty whenever the Senate tried to vote.

Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members, and a Majority of each shall constitute a Quorum to do Business
– U.S. Constitution, Article 1, Section 5

[Update: Since publishing this piece, I’m reminded that Alabama Democrat Doug Jones defeated Republican Roy Moore in a special election earlier this year. My bad for the oversight. However, this makes the partisan divide even more favorable to the Democrats — 50-49. Fifty senators is not a majority. It would take a truly unusual ruling by the Parliamentarian to allow the Vice President to help constitute a quorum, and even if he did so rule, Democrats would then be in position to tie to their Senate chairs not only all Republican senators, but Vice President Mike Pence as well. In other words, the Democrats’ hand is even stronger.]

I’m going to expand on this in a longer piece, but the point is too important not to pass on now. If Democrats are truly serious about blocking any Trump-nominated Supreme Court justice, there is a way. But they have to actually want to block the nomination, not just say they want to.

How To Block the Nomination

This strategy, which I’m convinced will work, comes via Vox writer  Gregory Koger. It goes like this. According to the Constitution, Article 1, Section 5:

Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members, and a Majority of each shall constitute a Quorum to do Business

This means: Neither house of Congress can do business without a quorum, defined as a simple majority.

What if a majority is not present? Section 5 continues:

a smaller Number may adjourn from day to day, and may be authorized to compel the Attendance of absent Members, in such Manner, and under such Penalties as each House may provide.

This means: If there’s no majority present, the minority can compel absent members to attend. But how? Here’s there’s no answer, and in fact nowhere in our government is there a mechanism but shame for compelling congressional attendance.

This gives Democrats, or Republicans for that matter, all the power they need, assuming the numbers work out right.

Now consider the numbers. If there were 60 Republican senators, Democrats could absent themselves forever and nothing would change. Sixty senators comprise a quorum.

But look at the current Senate. There are 46 Democrats, two independents who caucus as Democrats, and 52 Republicans. Yet one of those Republicans, John McCain, may never attend another Senate session due to his health. That puts the partisan split at 51-48.

As Koger notes, “Other than quitting for the day or calling for others to come to the chamber, the Senate can do nothing without a majority of its members — 51 senators — participating in a vote. No bill can pass, no amendment can be decided on, no nominations can get approved.”

In other words, every Republican senator would have to appear for every vote from which Democrats were wholly absent, or no vote could be taken. Every one of them. Democrats could simply challenge the vote for lack of a quorum, then leave during the quorum call.

Shutting Down the Senate

If the plan were for Democrats to be absent en masse just for the vote on Trump’s Court nomination, the plan would fail. On the day of the vote, 51 Republican senators would show up to vote yes and the nomination would be confirmed.

But if Democratic senators were absent en masse from day one of the decision to do it — if all 48  Democratic and independent senators refused to enter the chamber for any vote at all — it would paralyze the Senate. Every vote of the Senate, from the most important to the least, would require every Republican to be present to ensure passage.

In the ideal world this isn’t a problem, since there are, just barely, a quorums-worth of Republican senators. In the real world, however, there is almost never a day in which every senator is present for a vote. Democrats could even force a quorum call any time they wanted on a simple procedural vote, forcing Republicans to be nearby and available at a moment’s notice. When would they fundraise? When would they meet with lobbyists?

It’s almost certain Republicans couldn’t conduct Senate business under those conditions. This move would put Democrats in a position of unblockable power until a future election changed the numbers. They could force — not ask, but force — the nomination to wait until after the 2018 election.

All they’d have to do, is want to.

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59 comments

  1. S.

    Take the low ground like some Republican scoundrel? Never! Democrats live lives of honor, and if keeping the high ground leads to (another) defeat, then so be it – they know that America’s changing demographics will avenge them… eventually.

    Reply
    1. Matthew G. Saroff

      Yes, the Democrats are keeping their powder dry, because it’s worse to be out of powder than to lose every battle.

      On a slightly more serious note, when Democrats in the Texas State House did something similar, the Bush administration used the FAA and ICE to track them down.

      Trump would have carried in chains to the senate floor.

      FWIW, I think that this is worth it, but I’m not the one getting hogtied and dumped at the feet of Mitch McConnell.

      Reply
    2. readerOfTeaLeaves

      So they should just simply roll over and let a man under investigation for treason, whose former campaign manager and aides are being charged with felonies for treason, appoint to SCOTUS a man with a long history of ‘conservative judicial activism’?

      The Dems need to grow a spine and put an end to allowing bullies to appoint their own referees.
      Allowing a potentially treasonous bully to appoint judges is the total opposite of ‘honorable’: honor is premised on courage. Without courage, there is no hope of honor.

      Reply
    3. Ginavon

      Maxine W is now the face of the Democratic Party like it or not. This article, suggesting the use of dirty political strategies instead of honest intent to serve in the positions elected, is perfect CONFIRMATION WHY INTELLIGENT RATIONAL PEOPLE ARE ALL JOINING THE WALK AWAY MOVEMENT in the USA. I used to vote straight Democrat ticket year after year for my entire life and I am 65 years old now and never missed one voting opportunity. After seeing the absolute INSANE actions and verbalizations of those who call themselves democrats I have vowed to NEVER VOTE DEMOCRAT again. So “keep on keeping on” folks …you are your own party’s worst enemy…..call my senators and congress people to remove MAXINE W? No way!!!!! she is too good for the Republican Party!

      Reply
  2. Alex morfesis

    Red shirt Hamburg Democrats will never shed one ounce of sweat for the commonweal… Tis what it tis….

    Reply
  3. Code Name D

    I seem to recall this being tried in Texas once. The Killer D’s they were called. Just saying.

    Reply
      1. Code Name D

        This is my real problem here. If they do do this, than what is the end game? Can they shut down congress for ever? Gee, think of all the de-regulation and tax cuts for the wealthy that don’t get passed.

        Reply
  4. The Rev Kev

    Interesting plan that but would the Democrats donors ever go for it? After all, those donors may be really keen to see a business-loving Supreme Court majority in place to get even more decisions passed that would benefit them.

    Reply
  5. JBird

    On compelling attendance, why couldn’t the minority pass a law on that so long as the law dealt
    only with that issue? The passage suggests that they could.

    Reply
    1. allan

      As much as I would like the quote

      a smaller Number may adjourn from day to day, and may be authorized to compel the Attendance of absent Members, in such Manner, and under such Penalties as each House may provide.

      to mean what Gaius says it means:

      If there’s no majority present, the minority can compel absent members to attend,

      that reading is in fact an enormous leap from the original.
      “may be authorized to compel” and “as each House may provide” are loopholes that Cocaine Mitch
      will have no trouble, either moral or logistical, driving an oil train through.

      The post is grasping at straws that have long since burned up.
      And that’s before getting to the reality of the modern Democratic Party.
      We tried, we really tried.

      Reply
    2. Fraibert

      There are two problems I see with this approach. One is that it is actually incorrect that the Senate lacks power to enforce attendance. Under Rule VI(4) of the Rules of the Senate:

      “Whenever upon such roll call it shall be ascertained that a quorum is not present, a majority of the Senators present may direct the Sergeant at Arms to request, and, when necessary, to compel the attendance of the absent Senators, which order shall be determined without debate; and pending its execution, and until a quorum shall be present, no debate nor motion, except to adjourn, or to recess pursuant to a previous order entered by unanimous consent, shall be in order.”

      In short, the rule provides for a majority of the Senators _present_ (not a majority of the body) to “direct” the Sergeant at Arms to compel attendance, and there is no room for debate on such action. In essence, if the Democrats want to try shutting down the Senate, they’re going to have to do so indefinitely, and some are going to have to find a secret hide out (cf. Texas).

      FWIW, I also feel that this Rule is probably constitutional, though I would be open to counterarguments.

      Second, I suspect Senator McCain would likely make a showing, if needed. That being the case, the Democrats will get blamed (even by the media, who likes the Senator) for forcing a sick man to attend. (I recognize the fact that Senator McCain should resign, but I’m stating simply what I think is the probable outcome.)

      Reply
      1. Jason Boxman

        What, elected liberal Democrats inconveniencing themselves for something they claim to believe in? Doubtful.

        But it’s always worthwhile to point out, like the liberal Democrats failure to employ reconciliation in the Senate to pass a decent health care bill all those years ago, it’s always possible to join the fight; they simply choose not to because it’s not in their class interests to do so. Virtue signaling, and little more.

        Reply
      2. Chris Golden

        Hardcore conservative Independent here.

        I’ve thought that McCain should resign since he announced he was dying. The people of AZ should not be denied full representation in Congress because of the vanity of a bitter old man.

        Reply
        1. Eureka Springs

          I appreciate and agree with most of what you are saying, but the U.S. Senate by intent and design is to make sure full representation does not happen.

          Reply
          1. whiteylockmandoubled

            This is one of those cases where a really smart guy reads one document and gets a genius idea, not realizing how spectacularly ignorant he is of the law and history surrounding it. Sorry Gaius, but you’re not that much smarter than Thomas Jefferson, who figured out this strategy, or John Adams and his legislative allies who thwarted it.

            The rule allowing a majority of Senators present to instruct the Sergeant at Arms to compel attendance to achieve a quorum dates to the passage of and resistance to the Sedition Act in 1798. Last time I know it happened Bob Packwood was carried bodily onto the Senate floor in 1988. You’re fabulous and all, but next time read a little beyond the text of the Constitution.

            See here: https://www.senate.gov/artandhistory/history/minute/Compulsory_Attendance.htm

            Here too:
            https://www.senate.gov/artandhistory/history/minute/Getting_even.htm

            Reply
      3. whiteylockmandoubled

        Yeah, love Gaius, but this is unadulterated bullshit. A majority of members present can indeed compel attendance, and in case you think it will be some fat guy in a suit begging the Dems to return, the Sergeant and Arms has more than 2,200 Capitol Police officers at his disposal, who are empowered to arrest anyone who violates senate rules, and have jurisdiction to “protect” members of Congress anywhere in U.S. territory.

        Now it would be really entertaining to watch the Capitol cops hauling the really old Senators like DiFi, Bil Nelson and even Bernie onto the floor in handcuffs, but if you don’t think McConnell would do it after a suitable period of time to allow the blame to shift to the Dems, you’re completely out of your gourd.

        And, of course, leaving aside the process, the idea that the Dems would mount that kind of a fight is even more ludicrous than believing McConnell wouldn’t.

        Reply
  6. Disturbed Voter

    This is why I support the British Parliamentary no-confidence system over the American system. The approval of Congress is 11% .. why should they legislate at all?

    Reply
      1. Ginavon

        Yes indeed most every members net worth is over 8 million and same goes for senate but TRAY GOWDY stands out amongst them all because his net worth is only $190 thousand. Now there is an honest man omong ALI BABA AND THE 40 thieves!

        Reply
  7. Brooklin Bridge

    All they’d [the dems would] have to do, is want to.[emp. mine]

    That last sentence is the point of the post. Gaius is not dreaming. He’s simply illustrating vividly, again, the nature of our Vichy Democrats and of our two Republican party system..

    Reply
    1. False Solace

      It’s far too late for the Dems to go nuclear. If they wanted to take revenge for Garland they should have pushed the button over Gorsuch’s nomination. Kennedy’s retirement and the need to replace him are routine. The Dems already gave up the SC. This is just whining to look good to their base. There’s no way they can sell it to the wider public.

      Reply
    2. Gaius Publius

      To False Solace’s point, yes:

      If they wanted to take revenge for Garland they should have pushed the button over Gorsuch’s nomination.

      In fact, Senate Democrats did have a short window in which to go nuclear on Garland. I wrote about it here:

      What Democrats Failed to Do on January 3

      Needless to say, they didn’t take it.

      GP

      Reply
      1. Gary Fischer

        Trump derangement syndrome in spades? Noble sentiments all, I sympathize, really, but it ain’t gonna happen. And besides, he’d just nominate someone else as conservative. Plus, he could well be re-elected. It’s gonna be a long ride…

        Reply
  8. lyman alpha blob

    I suspect that if this had any chance of working, the Republicans would pull a Weekend at Bernie’s with old John McCain before letting the Democrats get away with it. But the Dems would have to try first, which seems a stretch.

    Reply
  9. Darius

    But. But. Norms. Bipartisanship. Civility.

    Democrats care about all this stuff while the only thing Republicans care about is treating Democrats to the business end of a horse whip. Democrats also love being patsies and stooges. It’s the role they were born to play.

    Reply
    1. Arizona Slim

      Speaking of civility, this organization was started by Ron Barber, who was US Rep. Gabby Giffords’ area director. Matter of fact, he began setting things up while he was still in the hospital, recovering from the gunshot wounds that he, Giffords, and others suffered back on January 8, 2011.

      Link: http://fundforcivility.org/

      In recent years, the organization hasn’t been very active, and I don’t know why.

      Reply
  10. ChiGal in Carolina

    It’s all moot. Joe Manchin, the heretofor mentioned Doug Jones, and–is it Debbie Stabenow?–wouldn’t absent themselves.

    Reply
    1. DJG

      ChiGal (still full of that Chicago extrasensory perception) is correct. And don’t forget Heidi Heitkamp, who is somewhere to the right of Richard Nixon.

      Gaius Publius makes an argument that is a thought experiment.

      Reply
  11. LarryB

    This would set a terrible precedent, what would happen if the dims were to pick up a couple of seats this fall and so have a narrow majority? The Republicans would undoubtedly feel justified in shutting down the Senate whenever they felt like, and they don’t even really have anything like the Blue Dogs to worry about.

    Reply
    1. Jason Boxman

      Why? How is this much different than simply refusing to hold a vote on a Supreme Court nomination? What’s the point of unilateral disarmament?

      The Republicans play for keeps. The Democrat party simply fights a rear-guard action against the left.

      Reply
    2. drumlin woodchuckles

      The precedent would be no worse than the last precedent the Republicans set by not holding hearings or anything else on Garland. Obama also set a new low in precedents by secretly collaborating with the Republicans to keep that seat vacant. That’s how I interpret his refusal to look for a way to “recess appoint” Garland. The DemSenators also set a new low in precedents by peacefully accepting the RepSenators’ turning-off of the process. They could have shut down the Senate then. The fact that they chose to not shut down the Senate then means that they will choose to not shut down the Senate now.

      But about precedents in theory . . . if the Senate Democrats actually shut down the Senate and kept it shut down till after November elections, that would set a precedent of meaningful and effective political-combat action against Republican aggression.

      In actual fact, the Senate will stay open and the Democrats will make sure that the TrumpJudge gets confirmed. A number of Senators will pretend to try shutting down the Senate, but they will quietly agree first on which DemSenators will be the “designated villains” who are assigned to stay in the Senate to keep it open, and vote FOR Kavanaugh.

      If the Lady From Maine or from Alaska votes “against”t, the Dems will assign two DemSenators to vote
      “for”. If both RepSens “for” womens’ rights vote “against”, the Dems will assign three of their Senators to vote “for”.

      Don’t believe me? Watch and see. If I am wrong, I can endure some being-laughed-at.

      Reply
  12. anonymous II you

    The one trait that Democrats have not been able to show is the willingness to engage with controversy. This proposal is very controversial.
    Once again we see the need for the Democratic party to take strong stands on major issues. The American public is usually more in favor of policies such as Bernie Sanders has outlined than those espoused by the Republicans. Democrats for the most part have been standing too close to the neoliberal policies of mainstream politics; this has caused many voters to be disaffected and stay home. The Republican Party, on the other hand has appealed to its base and knows how to play the game of controversy.

    Reply
    1. Ginavon

      I wanted to vote for Bernie but thanks to HRC I never got the chance STRAIGHT TICKET REPUBLICAN NOW and I bet there are many more who feel the same. The CORRUPTION in the Democratic Party is daunting!

      Reply
  13. Roger Smith

    This article seems to assume any congressional legislator has read, and more importantly comprehended, the Constitution. Dead on arrival. They respond only to loud noises and the scent of finance.

    Reply
  14. Synoia

    1, If the D’s block the quorum.

    2. The R’s ask John McCain to “retire due to health” and Arizona nominates a R in his place.

    Probability of (1) 5% to 25%
    Probability of (2) 100%

    Reply
    1. Gaius Publius

      True, Synoia, but the teeth of the plan isn’t to just defeat this vote, it’s to lock down the Senate into the next election if this vote isn’t delayed.

      IOW, the Rs would have to choose “no votes in the Senate for the rest of this session unless all 51 Rs are present” or “delay this vote until the current session ends to get the Senate working again.”

      Rs can win any vote. But the cost of winning would be that they are all forced, each and every one of them, to hang around the Chamber for every vote, even those that normally get unanimous consent. It’s a very high price.

      BTW, the goal of this piece is to make Dems, if they do fold (which the whole of the world anticipates), pay a very high price in public opinion by destroying their cover story “But…we were helpless.”

      The tool’s at hand. If they chose not to use it, let that be the headline.

      Mes centimes,

      GP

      Reply
      1. Synoia

        Ah, not only is it a parliamentary maneuver by the D’s against the Rs, it is a test of the D’s resolve.

        If I open a book to take bets on the D’s resolve, where would I start the odds?

        a) 100:1 Against D Resolve
        b) 2:1 Against D Resolve
        c) D resolve the favorite?

        Any professional bookies in the readership?

        Would the existence of such a betting pool influence the D’s actions?

        Reply
      2. drumlin woodchuckles

        Good point. This is an opportunity to make the Senate Democratic Caucus urinate and diarrheafecate itself in public, in hopes that the public can no longer ignore the smell of what Democrats smell like.

        It would set the stage for either the decontamination of the Democratic Party, or the extermination of the Democratic Party and the political bio-remediation of the ground it is burned off of, so that maybe something better can be grown in its place.

        Reply
        1. JBird

          …in hopes that the public can no longer ignore the smell of what the Democrats smell like.

          One can dream of this. Personally I’m hoping for the Whigification of the Democratic Party (actually both but let’s go crazy here)

          Reply
  15. Eureka Springs

    All of this strikes me as some D’s with a chip on their shoulder out looking for a fight, any fight. D’s might just whoop up on the R’s for a spell, if you are lucky and fall for kabuki. But once the fight is over, win or lose, you D cheerleaders are going to at best be right back where you started. Give me the name of one good nominee Dems would push through against the will of their neo-liberal-con owners even if they where both Pres. and made up all 100 of the Senators?

    Our problems are systemic.

    Reply
  16. George Phillies

    ” Every one of them. Democrats could simply challenge the vote for lack of a quorum, then leave during the quorum call.”

    This nonsense or a variation on it was tried in the 19th century House of Representatives.

    Once a Democrat opens his mouth to ask for a quorum call, the presiding officer will say that he is there and counts for the quorum. Of course, the ruling could be appealed, but then a Democrat would have to be in the chamber.

    Putting the budget renewal due September immediately after the vote on the Federal judge, so that the lack of a vote is the Democrats’ fault, would also be interesting.

    The really radical idea is that the Democrats would finally agree that they *lost* the 2016 election.

    Reply
  17. JerryDenim

    Wow. Sorry to be so cynical but this seems incredibly far fetched. I thought Doug Jones was on record saying he was open to voting yes on Trump’s nominee? Also the Dems need to be civil, bi-partisan, ‘respect norms’, You know. Maybe they can organize another sit-in after they vote to confirm Kavanaugh to show the liberal base how hard they’re ‘fighting’. The blue-dog, corporate Dem ‘resistance’ should be called by their more accurate name, the ‘assistance’.

    Reply
    1. Synoia

      The blue-dog, corporate Dem ‘resistance’ should be called by their more accurate name, the ‘assistance’.

      I beg to differ. They are S, Servants. Patriotic to the Money.

      Reply
      1. Ginavon

        Each is woth over 8 million only one has a net worth of $190 thousand yes 1 honest joe in the pit of snakes…TREY GOWDY keep an eye out for him to be nominated in an extremely important position requiring total honesty.

        Reply
        1. Grebo

          Why would Congress support the nomination of an honest man to an important position?
          Besides, he is quitting Congress to spend more time with his law books.

          Reply
  18. Oregoncharles

    1) Two Independents. Bernie would probably go along; would Angus King?

    2) Wouldn’t the Republicans just drag in everybody, including a few dragooned Dems, whenever they really cared?

    3) How would shutting down Congress play in Peoria?

    Reply
  19. George Phillies

    Shutting down the Senate will have interesting consequences, given that Congress occasionally has other work to do.

    An option that will not happen is for the Supreme Court to revisit Roe v Wade, say this is a tenth amendment issue, it is purely a state issue, and all Federal laws on the topic such as the Partial Birth Abortion Act and any restrictions on people travelling between states for this purpose are completely invalid in their entirety. The conservatives and liberals will both get their wishes, in different states, and be able to complain until they are blue in the face.

    Reply
  20. EoinW

    Being a foreigner, you might want to correct me if I’m wrong. As I understand it, the President nominates a judge for the Supreme Court. Then Congress votes to confirm that nomination.

    All this shutting down the Senate talk sounds to me like: “I’m going to take my ball home and not play anymore, unless I get to win!”

    Seriously, the Left has owned the Supreme Court since the 1970s. You’ve won everything that mattered in the culture war. Conservatives seem to have had the maturity to accept their losses and keep playing by the rules. Yet the first sign of Liberals losing and it’s Snowflake Meltdown time.

    Reply
    1. Anarcissie

      The Supreme Court isn’t only about the Culture War. However, pretending it is is good business for the Democratic Party’s leadership and their numerous hangers-on and wealthy donors.

      Reply
    2. bronco

      sounds about right . We would call them Johnny Marble types , as in look there goes Johnny taking his marbles home if it seems like hes going to lose.

      Who even cares what the democrats in the senate will do or might do? Bunch of nobodies , quick someone without looking it up name 10 senate democrats , points off if you mention someone who has been out for a decade or two.

      Reply
      1. UserFriendly

        I could easily name at least 70-80, of the current senators off the top of my head and could with about 95% accuracy tell you the state and party when given the senators name. But I just have a memory for that kind of stuff.

        Reply
  21. JerryDenim

    I’m probably breaking the cardinal blog rule of troll feeding, but yeah foreigner you’re wrong. Way wrong, on multiple counts.

    First of all you state: “the Left has owned the Supreme Court since the 1970s” when in fact the opposite is true, 1970 was the last year the court had a majority of Democratic appointees.

    Secondly you state- “Conservatives seem to have had the maturity to accept their losses and keep playing by the rules.” One word, Merrick Garland. If you remember, way back in the year 2016, Senate Republicans refused to take a vote on Garland’s nomination for a record 293 days, until his nomination expired. Garland was a completely inoffensive, establishment, milktoast center-right kind of Democrat appointed by a popular President with no scandals, yet the Republicans took their ball and went home as you like to say rather than doing their job and taking a vote on a procedurally legitimate Supreme Court nominee.

    You can bash Democrats all you want, most people here don’t care for them either, but stick to the facts and keep it honest.

    Reply
  22. KLG

    In a previous life I did research on jellyfish that glow in the dark. The quintessential invertebrate, they have more spine than a Senate Democrat.

    Reply

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