Schumer’s options in the battle to replace RBG

Filibusters, additional states and impeachment proposed as possible efforts.

Senator Chuck Schumer outside the Capitol building on September 22, 2020.

Senator Chuck Schumer outside the Capitol building on September 22, 2020. Shutterstock

With the death of Supreme Court Justice Ruth Bader Ginsburg, a forceful, liberal feminist, Senate Democrats are the only thing standing between President Donald Trump and the appointment of a conservative justice to replace her – which could tip the balance on the court in favor of repealing the landmark abortion rights decision Roe v. Wade. This will put a spotlight on New York’s senior U.S. Sen. Charles Schumer – the Senate minority leader and, like Ginsburg, a native Brooklynite – who will presumably lead his party’s efforts to block Trump’s nominee. 

The situation is similar to when, in February 2016, Supreme Court Justice Antonin Scalia died. With 11 months until the next president would be inaugurated, U.S. Senate Majority Leader Mitch McConnell argued that it would be unfair to allow then-President Barack Obama to fill the empty seat with the District of Columbia Circuit Judge Merrick Garland with a presidential election so near.

Now, with a presidential election just two months away, McConnell has changed his stance from 2016 and made it clear that the same rules would not apply this time around – now that there is a member of his own party in the White House. 

Here is what Schumer could do to prevent the filling of the vacant seat by Republicans, or what he could do next year if he is unable to stop them now. 

Why is a Republican-seated justice so threatening now?

Roe v. Wade, the Supreme Court case in 1973 which legalized abortion, has been undermined by several states with a Republican majority who have passed bills strictly limiting access to abortion, along with conservatives who have attempted to dismantle the case in court. With five conservative judges on the Supreme Court, adding a sixth would all but guarantee Roe could be overturned. Rep. Alexandria Ocasio Cortez spoke at a press conference on Monday, noting the “stakes of this vacancy” for women’s reproductive rights, labor laws and health care. Additionally, McConnell and other Republican senators have created a dangerous precedent in the nominations of Supreme Court justices by blocking the Garland seat and reversing themselves this election year. This could undermine the court’s legitimacy and create chaos in how Supreme Court seats are filled. Kristen Clarke, president and executive director of Lawyers Committee for Civil Rights Under Law, said the attempt at filling the vacant seat so close to an election is dangerous. “We are unaware of any moment in history in which Congress confirmed a nominee to the Supreme Court while voters were actively casting ballots in the general election,” Clarke said. “This is an unprecedented politicization of a Court vacancy that stands to cause permanent damage to the integrity of the Court.”

Can Democrats filibuster the nomination?

No. In 2017 McConnell abolished the filibuster for Supreme Court nominations, during the nomination of Supreme Court Justice Neil Gorsuch. Democrats stalled the vote for Gorsuch by prolonging the debate for his nomination with a filibuster and, in retaliation, McConnell made it a rule that only a simple majority is needed to end debate on a Supreme Court nomination. By doing this, McConnell made the confirmation of Supreme Court justices substantially easier.

How many Republicans does Schumer need to side with the Democrats?

With just 47 Democrats in the Senate, Schumer would need four Republicans to vote against the nominee – assuming Schumer keeps all of his own members in line. Sens. Lisa Murkowski of Alaska and Susan Collins from Maine have both publicly announced that whoever is elected on Nov. 3 should fill the vacant seat. Democrats hoped to pick off Sens. Lamar Alexander from Tennessee and Chuck Grassley of Iowa, but both have decided to support a vote on Trump’s nominee. Sen. Mitt Romney, who voted for Trump’s impeachment, announced he is sticking with the Republicans as well. Other Republicans are waiting to announce their stance on the issue, but unless Schumer can get two additional Republicans on his side, there is little hope for the left.

Could an impeachment of Attorney General William Barr be a possible stalling tactic?

Democrats in Congress have been calling for an impeachment probe of U.S. Attorney General William Barr since June. Barr is said to have interfered with the legal investigation of foreign intervention during the 2016 presidential election and has undermined New York prosecutors. However, some legal experts find it unlikely that Barr can be impeached because not enough evidence has been shown to make a case against him. Rep. Hakeem Jeffries, chair of the House Democratic Caucus, who represents Brooklyn, said that he was focusing on the election, not the impeachment. “At the moment we're looking forward toward the election,” Jeffries said. “And the American people will ultimately make the decision as to whether Trump and his corrupt administration should be held accountable." On the other hand, Speaker of the House Nancy Pelosi stated, “we have our options” when asked about a possible impeachment to delay the nomination. 

Will the threat of the Democrats’ power next year be enough?

With the upcoming election, Democrats may gain control of the presidency and the Senate and retain their majority in the House of Representatives. With that power, Schumer has declared that “nothing is off the table” for next year, if Republicans were to go through with their nomination. Although he doesn’t have a vote, House Judiciary Committee Chairman Jerry Nadler has considerable sway over the votes of senators. Nadler tweeted that, if McConnell and the Republicans were to fill the seat, Nadler would support the addition of more justices to the Supreme Court. The removal of filibusters has also been widely discussed, which would allow Democrats to pass legislation with a simple majority. Another proposed tactic is the addition of the District of Columbia and Puerto Rico as states. This action would give the Democrats more senators, since largely left-leaning people reside in those locations. Some conservatives have already threatened the Democrats in return. Mark R. Levin, a conservative radio talk show host, tweeted that Republicans would seek their own revenge by using the Democrats’ new rules against them, threatening to add even more judges to the Supreme Court and add American Samoa as a state. Additionally, if Schumer can’t garner the support of his fellow Democrats, he can’t threaten any retribution. One prominent Democrat, Sen. Dianne Feinstein from California, has already said she would not be participating in the abolition of filibusters. "I don't believe in doing that,” Feinstein said. “I think the filibuster serves a purpose. It is not often used, it's often less used now than when I first came, and I think it's part of the Senate that differentiates itself.”