Thursday, June 28, 2018

"Constitutional Super Hardball"

Priscilla Smith

I'm no expert when it comes to matters of Senate procedure, but one thought suggested to me by a learned friend after we heard yesterday that Justice Kennedy was retiring is that Democrats do have a "Trump" card, so to speak, that they could  play to prevent Trump from filling Justice Kennedy's seat before the midterms.  I speak of U.S. Constitution, Article I, Section 5, Clause 1, which provides:
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; but 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.
Given the current narrow balance of the Senate, if Senate Democrats orchestrated a walkout (our suggestion would be they all go to Mexico City though Canada might be nicer in the summer months), the Senate would only be able to reach 50 members (because Senator McCain is ill) which is less than “a majority,” and therefore would be unable to “do business” (e.g., act on nominations).  My friend calls this constitutional “super hardball."  I think it's time to play.


Bringing over my comment from the earlier thread: This suggestion won't work because the absence of a quorum has to be suggested by a Senator on the floor. That would require the presence of a Dem Senator, bringing the total (assuming all Rs other than McCain are present) to 51.

Darn. so Collins or Murkowski would have to join in the scheme which they undoubtedly won't do. Well, it was a fun idea. Any others?

As I said, I'm sure a Republican would make a point of order to uphold standards or because they were concerned about Trump or the particular nature of the nominee.

If Democrats wanted to play hardball, they could force Republicans to all be on the floor to do business (if one or two were away, this would allow a sole Democrat to make a quorum call), deny unanimous consent, force debate on everything etc.

I don't know how much that would do, but at some point, it might be worth it to totally be on strike, so to speak, to underline the illegitimacy of the situation. The problem is that eventually you need something to be done such as funding government.

Mark is correct about that math, but even if the math worked for the Democrats, the runaway tactic is unlikely to succeed.

From the Senate Rules:

Quorum Article I, section 5 of the Constitution requires that a quorum (51 senators) be present for the Senate to conduct business. Often, fewer than 51 senators are present on the floor, but the Senate presumes a quorum unless a roll call vote or quorum call suggests otherwise.

If the Senate Democrats follow the lead of their state legislature brethren and run away from their day jobs, no one will be left to make a quorum call.

Yes, thank you. I see the problem, but as you say I do see the benefits of a strike.

This comment has been removed by the author.

When a quorum call is made, is the person who makes the call presumed present or only so when their name is called on the roll?

Just one more question: i see the senate rule about the roll call vote or the quorum call, but can't action taken without a quorum be unconstitutional despite the senate rule? Not that it is usually challenged, but in this case...

Presumably the Justice confirmed unconstitutionally would recuse themselves from any subsequent case. HAH! JK, but they should.

Note that the quorum clause has a provision for cases like this:

"but 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."

They could legally be dragged back in chains, and penalized in some way. And while Democrats in Wisconsin pulled a stunt like this, hiding over the border in another state, it cost them in the next election.

Are Democratic Senators from states Trump carried handily really going to risk this?

Further, Trump's nominee need only be confirmed by a majority of the Senators present, once a quorum is available. Even one defecting Democrat showing up would produce a quorum, of which the Republicans would have an embarrassingly large super-majority.

Democrats would have to weigh the odds of the ploy succeeding, vs the chances of Flake or another of the retiring Senators on the Republican side voting no.

It's a very risky play, in that it throws away the possibility that the nominee fails due to a Republican defection, and replaces it with the nominee being essentially guaranteed confirmation if there is even one Democratic defection.

And the Democratic defector doesn't have to vote for the nominee, just show up. A very easy way out for a Democratic Senator from a "red" state up for reelection.

And, even if they don't get any defections, are they really going to stay away until after the election and new Senators are seated? During an election year?

Is that something Democratic Senators up for reelection in "Red" states want to have to defend going into an election?

Bottom line, I don't see it happening.

I think the "asteroid" option is possible.

As to the latest question, I think some form of the "enrolled bill rule" will be applied to assume the confirmation followed procedures. The rule is upheld politically.

(Field v. Clark)

Well, that link is relevant, but this is the one I meant:

Agree that it is unlikely and that the risks of a democratic defection are probably at 100%. The Texas dems did it arguably successfully, in addition to Wisconsin. Obviously different circumstances. Thanks for the slate link Joe.


Joe's suggestion will "work" in the sense that it will gum up the works, but it won't prevent confirmation when it's time to vote. I don't see the Dem Senators as committed enough to adopt that strategy in any case.

There isn't anything the Dems can actually do in current circumstances. Give us control over one or both Houses, and then we can play some hardball (which I'll favor).

The sad fact is, the country is hanging on by a thread. We have at most 2 chances to get back on track (whatever that means after the current disaster): 2018 and 2020. Those are likely to be the last 2 reasonably fair elections if the Dems fail to win.


Welcome, Priscilla Smith to Balkinization comments thread normally featuring constitutional needles needles, as constitutional hardball and other dirty tricks are in the Republican playbook, because that's where the money talks, thanks to Citizens United and the Trump/GOP 2017 tax act for the wealthy who may "faithfully tithe" politically to Trump/GOP campaign coffers without disclosure on their scorecards.

There's an old baseball expression "Take two and hit to right." That doesn't fit. Or when in doubt, bunt; but that may not get you to first base. Maybe run up the count to tire Mitch, reminding him of the separation of powers in pillow talk.

The above is a rough translation of the preceding 5:46 PM comment. What I personally wanted to comment on was some of the stuff I was exposed to in grade school in the late 1930s, early 1940s, where I learned of Captain John Smith, John Alden and Priscilla Mullins, "Speak for yourself, John," with an overlay of Pocahontas. [I more recently read of John Smith's New England discoveries including the nearby Charles River cruise he took.] All of this was triggered by your name. Any connection to those long past names, events? Just curious. Meantime I'll have some peanuts and crackerjack while I root for the home team.

Your home team (and mine, though I heretically prefer the New Yorkers) not doing well this evening.

I've been a Yankee fan since 1939 as a Boston contrarian. Locally, I was a member of the Braves Knot Hole Gang for two years that allowed me to afford Major League Baseball; i couldn't afford the $0.60 Red Sox bleacher seats as a pre-teen. And we would often walk to Braves Field to save a nickel for snacks. Youth is not wasted on the young who will grow up, get jobs and provide the cash flow for my Social Security checks, thank you, FDR.

By the Bybee [expletives deleted, despite Gina], let's hope that 2020 foresight resolves the 2016 hindsight.

Query: Will the Archives of this Blog consolidate for posterity the two comment threads for this post?

Before this thread dies, just want to thank the author for leaving open comments at least this just once and think she also has argued a couple cases in front of the Supreme Court if it is the same "Priscilla J. Smith."

Yes, I greatly appreciate the comment thread being activated. I sometimes wonder about the posters who won't permit comments; Are they that afraid of feedback?

Priscilla Smith said...Just one more question: i see the senate rule about the roll call vote or the quorum call, but can't action taken without a quorum be unconstitutional despite the senate rule? Not that it is usually challenged, but in this case...

You could make the same argument against any of the laws enacted or confirmations made without an official quorum, but I am unaware of any such challenges.

Who would have standing to bring the claim under your scenario? The Democrat senators who fled to deny the quorum?

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