To keep Barrett off the Supreme Court, Schumer must fight like a defense attorney with a client on death row

The confirmation of Amy Coney Barrett to the Supreme Court, if it goes through, could mean the end of the Affordable Care Act, same-sex marriage and reproductive rights. To what remains of anti-corruption laws after Citizens United, what remains of gun safety laws, and what remains of the Voting Rights Act. A 6-3 majority led by Chief Justice John Roberts would create a bulletproof hard-right court.

Faced with a moment with apocalyptic implications, leading Democrats fall somewhere on a spectrum that runs from oblivious to resigned. Cory Booker (D-N.J.) wants to appeal to the GOP’s “sense of decency” and Maggie Hassan (D-N.H.) is complaining about procedural maneuvers that could delay the confirmation process.

The person with the power to organize top Democrats to confront this confirmation is Senate Minority Leader Chuck Schumer. He has the opportunity to be the hero who saves all that Democrats hold dear. As he strives to do so he should seek guidance from a counterintuitive source, one frequently standing just a few feet away: He should do whatever Mitch McConnell would do. We all know that if the roles were reversed, McConnell would do all in his power to whip the Republican Conference into line and slow things down.

One of us was trained as a death penalty lawyer, and learned from the best in the country, heroes who file motion after motion to keep their clients alive. Great death penalty lawyers do not roll over when the odds are high. They don’t rely on in-house counsel; they call people in other states pushing for new and creative ideas to keep their clients alive. Delay can mean life: There are thousands of people alive today because determined death penalty lawyers kept their clients alive until there was a moratorium, or the death penalty was ended in their state.

Today, the delay of Barrett’s confirmation would give us more reason to hope for the life of our democracy.

A postponement of just a few weeks — until after Election Day — might stop the nomination altogether. If Mark Kelly defeats Martha McSally (R-Az.) in the race to fill the remainder of John McCain’s term, then he will be seated right away. Two Republican senators have already indicated they oppose the current hasty process, so just one more would need to defect to get Republicans to wait until after inauguration to move forward.

In other words: A modest deferral could mean that Joe Biden would pick the next Supreme Court justice, and instead of having the court fall into ironclad control by the far-right, we could have a more balanced court.

Immediately after the passing of Justice Ruth Bader Ginsburg, we started hearing rumors that Senate Democrats were likely to capitulate with a perfunctory fight. Potential allies on the Hill told us “there’s nothing we can do.” Public signals were in line with such defeatism, with Sheldon Whitehouse (D-R.I.) pooh-poohing the prospect of a meaningful defense, asserting that there was no “triple secret” procedural trick and asking why this would go any differently than the past two confirmations.

Our answer: In 2017 and 2018, Trump wasn’t potentially within a few weeks of losing reelection and that Democrats didn’t control the House, which can play a part in forcing action in the Senate.

One of us is a former lawmaker who knows those premature assertions of hopelessness are endemic to establishment Democratic politicians. This even passes for savvy: If nothing ever happens, because you convince yourself nothing can be done, then you’re never wrong.

During the days after Ginsburg’s death, we scrambled to identify a dozen experts who told us the insiders were too pessimistic, and circulated a memo with 19 different ideas of what the Senate could do. We aren’t Pollyannish — we know that Republicans have the upper hand — but the prospect of extending the timetable beyond is a procedural possibility.

To Schumer’s credit, he appears to have taken some promising first steps — beginning to lay the foundation for delay by moving to proceed and filing cloture on a bill related to defense of the Affordable Care Act.

But we need more. Schumer should pull in Hill veterans who know procedure. He should put out an all-points bulletin for the most creative lawyers in the country, people who have a reputation for asking, “can we try this?” instead of proclaiming “that’ll never work.”

Democrats must make it clear that they intend to create a circumstance in which they will force quorum calls and votes and make sure every Senate Republican — including the 10 or so with serious races who want to be on the campaign trail — is stuck in D.C. through Election Day.

The Senate — and, importantly, also the House — must prepare legislative measures that can be compelled onto the floor and force debate or other actions that eat up the clock.

Odds are long, but not every possible path has been charted. This is life or death for our ideals. Democratic leaders must act like it.

Segal is the executive director of Demand Progress. Teachout is an associate law professor at Fordham.

Published by NY Daily News.

 
 
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