As the U.S. Senate barrels toward confirming a new Supreme Court justice before Election Day, Senate Democrats face mounting pressure from their party’s activist base to take drastic measures to not only to fight the confirmation process but literally not partake in it.
A boycott of all hearings for President Trump’s nominee to the high court is currently a pipe dream among a cadre of prominent progressives. But as elected Democrats weigh all of the available options to resist Republicans’ Supreme Court pick, Hill aides say that there has been talk about the idea.
The notion hasn’t been discussed formally by the entire Democratic membership of the Senate Judiciary Committee—the venue that will consider Trump’s pick—according to one Senate Democratic aide. But, the aide said, lawmakers and staffers have raised it informally in one-off conversations in addition to engaging outside groups and individuals about it.
In addition to talk of a boycott of the confirmation of Justice Ruth Bader Ginsburg’s replacement, another Senate Democratic aide said there has also been chatter of a less dramatic—but similarly tailored—gesture: a walkout of hearings should it become evident that they are not being conducted on the level.
At least one Democratic member of the Judiciary panel has publicly entertained the notion of a boycott. Asked on Tuesday by NPR if she was open to it, Sen. Mazie Hirono (D-HI) said, “I haven't decided that yet, but I am definitely raising my voice every chance I can.”
This talk, said a third Senate Democratic aide, reflects that caucus is in the “spitballing ideas stage” at the moment. In reality, the aide stressed, there is no serious consideration of the option at this juncture. “What the fuck are we doing—of course we’re going to go to the hearing,” has been some senators’ reaction, according to the aide.
The prevailing sense in the party currently is that Democrats should seize on the spectacle of a televised hearing to hammer away at what’s become the party’s top political pressure point in the closing weeks of the election: relentlessly highlighting the risk to the Affordable Care Act that could come from a conservative court and using it to bludgeon Republicans.
Asked on Wednesday about Democrats’ plans to gum up the process, Sen. Richard Blumenthal (D-CT) told reporters that their tools are “limited.”
“We have no magic panacea, right?” he said. “We can't force the Republicans to keep their word any more that we can force them to care about the health care of their constituents. But we can make our case there in the committee and publicly to the American people.”
Advocates of a boycott argue that it would help delegitimize the confirmation process and, by extension, the nominee if the hearing was conducted strictly by one party. And since the outcome is all but preordained, a boycott would not risk affecting the actual vote.
“The hearings are unlikely to influence the outcome,” wrote Adam Jentleson, a former aide to former Senate Democratic leader Harry Reid (D-NV) in a New York Times op-ed on Monday. “Attending confers legitimacy, and refusing to attend will send a powerful statement that they deem the process and the nominee illegitimate.”
Such logic has been floated before. But in notable past instances, the party ended up relenting.
In 2017, when Trump nominated Neil Gorsuch to fill the vacancy that Majority Leader Mitch McConnell (R-KY) effectively left open for a year, liberals clamored for hardball tactics from Senate Democrats. Minority Leader Chuck Schumer (D-N.Y.) called for a boycott as long as Trump was under FBI investigation for ties with Russia in the 2016 campaign.
“It is unseemly to be moving forward so fast on confirming a Supreme Court justice with a lifetime appointment, while this big gray cloud of an FBI investigation hangs over the presidency,” said Schumer in February 2017. For Gorsuch, Democrats eschewed the traditional courtesy meetings senators take with a high court nominee, a snub that incensed Republicans.
But some members of the Judiciary panel, including Sen. Chris Coons (D-DE), urged Democrats to extend to Gorsuch the privilege that Republicans didn’t extend to the Barack Obama nominee they blocked, Judge Merrick Garland. Ultimately, a handful of moderate Democrats met with Gorsuch, no one boycotted his hearing, and three Democrats joined all Republicans to confirm him to the bench.
Further back, in 2014, when the GOP majority in the U.S. House formed a panel to investigate the killings of U.S. diplomats at a compound in Benghazi, Libya, then House Minority Leader Nancy Pelosi (D-CA) faced pressure to not seat any members on the panel so as not to legitimize its mission. Pelosi, who asked, “why give any validity to this effort?” ultimately decided to put then-Rep. Elijah Cummings (D-MD) as the lead Democrat on the panel to ensure fairness and transparency, she said.
This moment, say some of the voices from Democrats’ left flank, is different than the past. McConnell’s sprint toward confirming Ginsburg’s replacement just weeks before the election—four years after he blocked Garland on the basis that voters should decide in November—has forced Democrats to up the political and procedural ante. That pressure ratcheted up on Wednesday, when Trump said that the Supreme Court needed a ninth justice in order for the court to rule on what could be a contested presidential election.
Even with these stakes, several aides said it was hard to imagine Sen. Dianne Feinstein (D-CA)—the top Democrat on the Judiciary Committee and a dedicated opponent of ideas such as ending the filibuster—signing off on a plan to boycott the hearings. And prominent moderates on the panel, like Coons and Sen. Amy Klobuchar (D-MN), are seen as obstacles to any such scheme. But a Democratic aide did say that among the moderate wing of the caucus, the intensity of the imminent court fight are prompting a reassessment of political tactics that may not have been conceivable in the past.
“I do think there’s something to be said by, we’re going to get rolled by Republicans until we stop laying down,” said the aide. “I think we’re at a point where Republicans have pushed even centrists and moderate Democrats who would be opposed to this stuff to say, what is the point of the filibuster—this is crazy.”