On the eve of the Senate Judiciary Committee’s vote to advance then-Judge Brett Kavanaugh to the Supreme Court, Ana Maria Archila had something to say to Senator Jeff Flake.
Archila, a sexual assault survivor, found Flake, an Arizona Republican, and cornered him in an elevator on Capitol Hill, emotionally urging him—“what are you doing, sir?”—to vote against Kavanaugh’s confirmation. Flake listened in silence; later, he urged the committee to delay its vote, which it did.
That interaction, which was captured on video and quickly went viral, was one of the defining moments of a historically bruising and painful confirmation process. It attracted some of the most aggressive and determined protests seen on Capitol Hill in recent memory: activists occupied Republican senators’ offices and packed the balconies of the soaring Hart Senate office building, filling it daily with deafening chants and banners. At the height of the demonstrations, nearly 300 demonstrators were arrested in one day.
Two years later, the Senate is set for another monumental confirmation fight, and liberals are hoping to summon every ounce of protest to fight a Donald Trump nominee who could shift the balance of the high court. But Archila doesn’t know if a moment like the one she had with Flake would be possible now—thanks to a country and capital changed by COVID-19.
“I can’t get that thought to leave my head,” Archila told The Daily Beast on Thursday, “so I can start thinking about what’s possible.”
Indeed, in the coming weeks, the marbled halls of the Senate are likely to be quiet, closed off to all but a small handful of lawmakers, staff, and reporters. The public gallery of the Judiciary Committee’s hearing room, where anyone who waits in line can come and observe the proceedings, will likely be empty when the nominee takes the witness stand. The office buildings usually thronged with staffers are now deserted, thanks to remote work policies.
Some of the key factors behind the atmosphere of intense resistance to Kavanaugh will be absent this time around—and those involved with the previous fights know it. “We were creating an environment where the senators basically had to walk by people whose lives were directly at stakes,” said Archila, who is co-executive director of the Center for Popular Democracy, a liberal group organizing to fight Trump’s nominee. “I don’t know that we will be able to do that inside the halls of Congress.”
That feeling is shared among those scrambling to organize the fight against the GOP’s accelerating effort to confirm a new justice. The sentiment is also shared by some in the Senate’s Democratic caucus, where there’s a sense that an intense public protest campaign will be crucial to their resistance efforts. “It just won’t be the same,” one Senate Democratic aide told The Daily Beast. “It clearly had an impact with Kavanaugh, cornering senators, applying pressure in person—all of it was compelling stuff, especially in the press. It clearly made some difference.”
But there’s a reason why liberals are not totally despairing: that the fundamental ingredients of protests will not be in short supply.
“We lose when we don’t wage the fight. The tactics are not as clear this time around, but we know people are willing to take risks,” said Archila, who mentioned the massive uprisings to protest police killings of Black people this summer, despite the pandemic. “That same level of energy is available to this fight.”
That the GOP is set to replace the late Justice Ruth Bader Ginsburg with a conservative who could usher in decisive rulings on health care, voting rights, and abortion is, alone, fuel for liberals. And then there’s the abject fury stemming from Republicans’ official reversal from their 2016 argument for blocking President Obama’s pick to the high court—that the voters should get to decide through the presidential election.
Instead of playing by the same rules, Senate Majority Leader Mitch McConnell (R-KY) is steaming toward a possible confirmation vote that could be just days or weeks before Election Day 2020.
Several activists with liberal groups involved in the brewing court fight told The Daily Beast that they have plenty of options for vigorous protest and resistance, even under the conditions of a pandemic.
“You better believe the Senate is going to know where people stand on this, and no tactics are off the table to make that clear,” said Kelley Robinson, executive director of Planned Parenthood Action Fund, the political arm of the prominent pro-choice group that was active in opposing Kavanaugh’s confirmation. “There’s no way senators can avoid having to address people directly.”
In the coming weeks, Robinson predicted, the capital city will see large outdoor demonstrations and marches, but emphasized organizers’ desire to drive participation remotely. She mentioned in particular a campaign to flood Senate offices with an unprecedented volume of calls from constituents, even more than the deluge that came into Senate offices during the Kavanaugh fight.
“There are lots of ways for folks to take action remotely that allow their voices to be heard,” she said. “We’re doing all we can to slow down this process, particularly having constituents speak directly to some of these folks, especially [GOP Sens.] Mitt Romney, Susan Collins, Lisa Murkowski, senators that need to step up right now.”
In just the week after Ginsburg’s passing, there have been signals of the contentious battle to come—and the lengths to which liberal activists may go to make their case. Earlier in the week, small groups of protesters with signs and bullhorns gathered outside the homes of McConnell and Sen. Lindsey Graham (R-SC), the chairman of the Judiciary Committee, though the crowds failed to confront either lawmaker directly.
Thousands, meanwhile, showed up at the steps of the Supreme Court over the weekend to mourn Ginsburg and to rally for her dying wish that the “next president” select her successor. And many more opened up their wallets to support Democratic candidates: on Sunday, the fundraising platform ActBlue reported processing $91 million in donations to Democratic candidates since Friday night. Sen. Brian Schatz (D-HI) told The Daily Beast on Monday it was a signal of “one of the biggest grassroots mobilizations, politically speaking, in history.”
Republicans have responded by framing the dissent in the context of their key election-year message: law and order. A dramatic new video from the Senate GOP’s campaign arm cast the Senate as the final bulwark against anarchy, interspersing threats from Democrats about total resistance to the Supreme Court pick with footage of fires in looting in U.S. cities over the summer and past protests over Kavanaugh. “The mob was in the street,” intones the narrator, “now it’s at our door.”
A GOP member of the Senate Judiciary Committee, Sen. Thom Tillis (R-NC), told conservative pundit Hugh Hewitt on Thursday that he expects the committee room to be empty for the nominee’s hearing. “But I’m sure there’ll be protesters in the street just like they were on my street on Monday, Antifa uniforms on my street protesting me,” said Tillis, raising the popular notion among conservatives that many liberal protesters are linked to that faction of hardcore left-wing activists. “That’s going to be, that’s the new normal for the way the Democratic Party operates.”
Currently, a constellation of liberal groups that mobilized for the Kavanaugh fight—as well as campaigns to oppose the GOP health care and tax bills in 2017—are collaborating in an attempt to plot an effort that adapts to this unusual moment. But they realize the clock is ticking: Trump is set to announce his nominee on Saturday; with the GOP eyeing a confirmation vote before Nov. 3, Graham could begin hearings as early as Oct. 6. Graham’s office did not return a request for comment on their plans for the hearing setup, but the senator told Capitol Hill reporters on Thursday that he would lay it out after a nominee is named.
Once that happens, some progressives predict, their broader strategy will be to shatter the image of a fait accompli that McConnell has worked to project over the vote, said Chris Kang, chief counsel at the liberal judicial activist group Demand Justice. “It can’t be, because there’s no nominee yet, and the senators haven’t even begun to hear from their constituents,” said Kang, who compared the situation to GOP efforts to repeal Obamacare. “They’re going to feel an avalanche of pushback.”
While talks are preliminary about strategy, among activists, that broad aim is clear. “We have to get creative to make it possible,” said Archila. “It’s not just Republicans who will need to hear the consequences of their actions, Democrats will need to hear it too… My sense, from the last few days, is people are ready to take it to their offices, the restaurants where they eat. No one’s going to be able to insulate themselves from the people and the urgency people are feeling about this.”
—with reporting from Scott Bixby