The burgeoning fight to fill Justice Ruth Bader GinsburgRuth Bader GinsburgProgressive group buys domain name of Trump’s No. 1 Supreme Court pick Democratic senator to party: ‘A little message discipline wouldn’t kill us’ Lincoln Project mocks Lindsey Graham’s fundraising lag with Sarah McLachlan-themed video MORE‘s Supreme Court seat is pouring fuel onto already simmering tensions in the Senate and threatening to fundamentally reshape the institution.
Senators in both parties acknowledge the level of dysfunction in a chamber where the bulk of their time is spent processing nominations amid failures to break stalemates on pressing national issues such as coronavirus relief and police reform.
“I’m praying to God that the better angels start flying with my colleagues. That’s all I can tell you. As Abraham Lincoln said, we all have better angels. I’m looking for them right now,” said Sen. Joe ManchinJoseph (Joe) ManchinThe debate over the filibuster entirely misses the point Trump plans to pick Amy Coney Barrett to replace Ginsburg on court Day before Trump refused to commit to peaceful transition, Aaron Sorkin described how he would write election night MORE (D-W.Va), who is part of a shrinking group of centrist senators in an increasingly partisan Senate.
Sen. Lisa MurkowskiLisa Ann MurkowskiDemocratic senator to party: ‘A little message discipline wouldn’t kill us’ Overnight Energy: Trump officials finalize plan to open up protected areas of Tongass to logging | Feds say offshore testing for oil can proceed despite drilling moratorium | Dems question EPA’s postponement of inequality training Poll: 57 percent of Americans think next president, Senate should fill Ginsburg vacancy MORE (Alaska), a moderate GOP senator, noted that Supreme Court nominations were a part of being a senator but added that there is “political tension, and that’s a reality. Does it help relationships on the floor? No.”
“Both sides have to acknowledge that perhaps we haven’t acted with our best manners, and so how we respect one another and we respect our own rules, I think, is important for rebuilding that trust,” added Murkowski, who made an unsuccessful call for the Senate to wait until after the election to consider Trump’s nominee.
Murkowski was on the floor recently with Sens. Dick DurbinRichard (Dick) Joseph DurbinThe Hill’s Morning Report – Sponsored by Facebook – Trump previews SCOTUS nominee as ‘totally brilliant’ Feinstein ‘surprised and taken aback’ by suggestion she’s not up for Supreme Court fight Grand jury charges no officers in Breonna Taylor death MORE (D-Ill.) and John ThuneJohn Randolph ThuneHouse to vote on resolution affirming peaceful transition of power Trump dumbfounds GOP with latest unforced error Senate passes resolution reaffirming commitment to peaceful transition of power MORE (R-S.D.), the two party whips, where she warned that the Senate was “failing” as an institution. When a reporter noted that the three senators at least appeared to agree that the Senate should behave in a healthier way, Murkowski interjected with a laugh, “I hope we agree on that.”
But an off-ramp that could break the gridlock and lower temperatures is nowhere in sight. The explosive battle over the high court is further dividing a Senate that is about to engage in its third Supreme Court fight in less than four years, with Trump expected to formally nameJudge Amy Coney Barrett as his nominee on Saturday.
There was already a taste of the looming gridlock this week when Senate Democrats — who can slow down but not block the nomination — invoked the two-hour rule that limits the ability for committees to meet, arguing there shouldn’t be “business as usual” if Republicans are going to try to fill the seat.
Sen. Ted CruzRafael (Ted) Edward CruzCrenshaw looms large as Democrats look to flip Texas House seat SCOTUS confirmation in the last month of a close election? Ugly The Hill’s Morning Report – Sponsored by Facebook – Trump previews SCOTUS nominee as ‘totally brilliant’ MORE (R-Texas) also grabbed headlines for blocking an amended resolution honoring Ginsburg, who died last week at the age of 87, because of language over her reported wish that her successor not be chosen until a new president is sworn in.
Instead of wrapping up their preelection work by Thursday, as Republicans had hoped, Democrats are forcing the chamber to return next week to finish a government funding bill, keeping vulnerable GOP senators off the campaign trail. Democrats are also facing pressure to try to prevent the Senate from leaving and require that Republicans show they have a quorum of 51 senators needed to do business.
“I just think they’re trying to throw a wrench into anything that we do. I mean, this obviously, it’s retribution for the decision on the court,” Thune said about the decision to come back next week to finish work on a continuing resolution.
Asked how much cooperation he expects in day-to-day Senate functions, Sen. John CornynJohn CornynHillicon Valley: Productivity, fatigue, cybersecurity emerge as top concerns amid pandemic | Facebook critics launch alternative oversight board | Google to temporarily bar election ads after polls close Lawmakers introduce legislation to boost cybersecurity of local governments, small businesses On The Trail: Making sense of this week’s polling tsunami MORE (R-Texas), an adviser to Senate Majority Leader Mitch McConnellAddison (Mitch) Mitchell McConnellDemocratic senator to party: ‘A little message discipline wouldn’t kill us’ House to vote on resolution affirming peaceful transition of power Republican lawyers brush off Trump’s election comments MORE (R-Ky.), formed a zero with his hand.
“Remember Kavanaugh? This will be that on steroids,” he added, referring to a contentious fight in 2018 over the confirmation of Supreme Court Justice Brett KavanaughBrett Michael KavanaughTrump plans to pick Amy Coney Barrett to replace Ginsburg on court Collins trails challenger by 4 points in Maine Senate race: poll SCOTUS confirmation in the last month of a close election? Ugly MORE.
Republicans are preparing to try to confirm Trump’s nominee before Nov. 3, which would set a record for the closest to a presidential election that a Supreme Court nominee has been confirmed. Though previous high court picks have been confirmed in fewer days, they were further out from a presidential election.
The fight has already led to a round of rhetorical bomb throwing.
During a floor speech, Senate Minority Leader Charles SchumerChuck SchumerPelosi slams Trump executive order on pre-existing conditions: It ‘isn’t worth the paper it’s signed on’ 3 reasons why Biden is misreading the politics of court packing Cruz blocks amended resolution honoring Ginsburg over language about her dying wish MORE (D-N.Y.) said McConnell had “defiled the Senate.”
“This is how our vaunted traditions of bipartisanship and compromise — on life support before now — end. This is how. By one side … deciding that the rules don’t apply to them, even their own rules. … If my friends on the Republican side want that kind of Senate, they can follow Leader McConnell down the very dangerous path he has laid down,” Schumer said.
The decision by McConnell, announced within hours of Ginsburg’s death, to hold a vote on filling the seat sparked immediate calls for escalation from some progressives who pushed for nixing the 60-vote legislative filibuster and expanding the Supreme Court should Democrats win the Senate majority and the White House in November.
Though Democratic leaders have tamped down talk for now, they say the decision by Republicans to move forward has shaken their faith in some of the institutional pillars of the Senate, which has historically been driven more by relationships than the majority-run House.
Asked how he was feeling about the state of the Senate, Sen. Tim KaineTimothy (Tim) Michael KaineTrump plans to pick Amy Coney Barrett to replace Ginsburg on court Hillicon Valley: Subpoenas for Facebook, Google and Twitter on the cards | Wray rebuffs mail-in voting conspiracies | Reps. raise mass surveillance concerns Democrats call for declassifying election threats after briefing by Trump officials MORE (D-Va.) said, “Oh, I’ve felt better.”
“I think this rushed process is going to do serious damage to the Senate as an institution,” Kaine said. “I think this power play is we don’t care about the institution.”
Thune defended the GOP decision to move forward with the Supreme Court nomination but acknowledged the Senate could function better. The key to that, however, he said was a “behavioral change,” not a rules change, when it comes to legislation.
“I do think that we could do both sides, what are we going to do to make this legislative process work more smoothly,” Thune said, adding that eliminating the legislative filibuster would “move us away from the kind of cooperation.”
The bad blood between the parties over the courts preceded Trump’s presidency. Republicans argue the current brinkmanship can be traced to the decision by then-Majority Leader Harry ReidHarry Mason ReidThe Supreme Court vacancy — yet another congressional food fight Trump seeks to turn around campaign with Supreme Court fight On The Trail: Battle over Ginsburg replacement threatens to break Senate MORE (D-Nev.) to get rid of the 60-vote filibuster for executive nominations as well as district and circuit court nominees.
But Democrats scoff at the idea that McConnell, once back in power, would not have done the same when it was convenient and note that he got rid of the same hurdle for Supreme Court nominees in 2017. Republicans have also been willing to move circuit court nominees over the objections of both home-state senators, even after using procedural tactics to fill empty seats during the Obama administration.
As nominations have become increasingly divisive, they’ve also moved to the forefront of the Senate’s floor schedule. Of the 195 roll-call votes taken so far by the Senate this year, 56 were related to legislation, 20 were related to Trump’s impeachment trial and the rest were tied to nominations.
“We are in a place in the Senate that is frankly weird,” said Sen. Sheldon WhitehouseSheldon WhitehouseThe Hill’s Morning Report – Sponsored by Facebook – Trump previews SCOTUS nominee as ‘totally brilliant’ Feinstein ‘surprised and taken aback’ by suggestion she’s not up for Supreme Court fight Hillicon Valley: Murky TikTok deal raises questions about China’s role | Twitter investigating automated image previews over apparent algorithmic bias | House approves bill making hacking federal voting systems a crime MORE (D-R.I.), noting the lack of legislation that gets debated on the floor.
Sen. Mike BraunMichael BraunTrump plans to pick Amy Coney Barrett to replace Ginsburg on court Trump dumbfounds GOP with latest unforced error Pessimism grows as hopes fade for coronavirus deal MORE (R-Ind.), asked if he thought the Senate was functioning properly, said that the “only thing that seems to function well here is appointments.”
“I think the reason it doesn’t function as well as a lot of people would like to see it is because the ideas are so divergent,” Braun added on the legislative pipeline. “When it comes to anything legislatively, it took 10-12 years to get criminal justice reform across the finish line.”
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