Democrats resigned that Amy Coney Barrett confirmation is inevitable: 'We can't stop the outcome'

Republicans have the majority, votes

As much as Democrats detest the confirmation process of Judge Amy Coney Barrett -- panning the election year effort as illegitimate, dangerous and rife with hypocrisy--- they've acknowledged there's little they can do to stop her lifelong ascension to the Supreme Court.

With Republicans holding the Senate majority and seemingly having the votes to confirm Barrett, Democrats say they don't have a silver bullet to stop the fast-tracked confirmation schedule that will kick off Monday.

"There's no procedural move that I'm aware of that allows the minority to slow this process down at all," said Sen. Chris Coons, D-Del. "And trust me, I've asked a lot.

"That's one of the things that I think the general public doesn't quite appreciate is that as long as the [GOP] majority is willing to change the rules and is willing to insist on moving ahead when it is demonstrably unsafe, unwise and unprecedented to do so, there's nothing the [Democratic] minority can do to stop them.”

In this image from video, Sen. Chris Coons, D-Del., delivers a nominating speech during the second night of the Democratic National Convention on Tuesday, Aug. 18, 2020. (Democratic National Convention via AP)

In this image from video, Sen. Chris Coons, D-Del., delivers a nominating speech during the second night of the Democratic National Convention on Tuesday, Aug. 18, 2020. (Democratic National Convention via AP)

Republicans hold a 53-seat majority in the Senate. Only two GOP Senators -- Sen. Lisa Murkowski of Alaska and Sen. Susan Collins of Maine -- have rejected pushing through the Barrett nomination just days before the presidential election. Four years ago Republicans blocked President Obama's nominee of Merrick Garland on the grounds his March 2016 nomination was too close to the November election when the American public would have a say.

Coons said the only shot at stopping the confirmation process is to convince at least two more Republicans to join Murkowski and Collins in standing by their position from four years ago that confirmation shouldn't occur until the presidential election is decided.

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"We need two more to join them in their ... recognition that fair is fair," Coons said Wednesday. "I am not optimistic that will happen."

And the most likely way the confirmation process could potentially be stalled is if Republicans sidelined by the coronavirus can't physically show up to vote on the nomination in the Judiciary Committee and on the Senate floor, one aide told Fox News.

While the confirmation testimony can take place remotely on Monday, a physical quorum of all 12 GOP senators would be necessary to vote out the nominee from the committee on the scheduled date of Oct. 22.

"A lot of this will just depend on whether they can make a quorum, both in the committee and then on the floor to be able to proceed," one Democratic aide told Fox News.

Two senators with coronavirus -- Republicans Thom Tillis of North Carolina and Mike Lee of Utah -- serve on the Senate Judiciary Committee and presumably would be well enough to return to Washington for committee markup on Oct. 15 and votes on Oct. 22. A third, Sen. Ron Johnson of Wisconsin, went so far to say he would show up on the Senate floor and vote on Barrett in a "moon suit" if necessary.

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The problem for Democrats is the Republicans have control over the committee and could potentially change rules on the fly to prevent Democrats from gumming up the process.

Sen. Dick Durbin, (D-IL), speaks during a Senate Judiciary Committee business meeting to consider authorization for subpoenas relating to the Crossfire Hurricane investigation, and other matters on Capitol Hill in Washington, June 11, 2020. (Carolyn Kaster/Pool via REUTERS)

Sen. Dick Durbin, (D-IL), speaks during a Senate Judiciary Committee business meeting to consider authorization for subpoenas relating to the Crossfire Hurricane investigation, and other matters on Capitol Hill in Washington, June 11, 2020. (Carolyn Kaster/Pool via REUTERS)

Sen. Dick Durbin, D-Ill, said there's little he and other Democrats on the Judiciary Committee can do because they are in the minority.

"We can slow it down perhaps a matter of hours, maybe days at the most, but we can't stop the outcome," Durbin told ABC's "This Week" on Sept. 27.

He said Senate Majority Leader Mitch McConnell, R-Ky., is "hell-bent on getting this done before the election."

With Republicans having the votes and the power, the real question for Democrats is whether they should even show for the Judiciary Committee hearings on Monday, said Chris Edelson, assistant professor of government at American University.

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Democrats may want to hold their own counter-programming event focusing on an issue they believe the Senate should be tackling -- such as coronavirus relief -- rather than normalizing the hearing with their attendance.

“As a Democratic senator, I might say: 'If I participate in these hearings, will I be legitimizing it? Will I be exposing myself and possibly others to the virus?'" Edelson told Fox News.

Judge Amy Coney Barrett speaks after President Donald Trump announced her as his nominee to the Supreme Court, in the Rose Garden at the White House, Saturday, Sept. 26, 2020, in Washington. (AP Photo/Alex Brandon)

Judge Amy Coney Barrett speaks after President Donald Trump announced her as his nominee to the Supreme Court, in the Rose Garden at the White House, Saturday, Sept. 26, 2020, in Washington. (AP Photo/Alex Brandon)

The historic hearing will take place just days before the Nov. 3 election that will determine the presidency and control of the House and Senate. Voting is already underway across the country, and Democrats are slightly favored to take control of the Senate since many more Republican incumbents are in vulnerable races this year than Democrats.

One Democrat told Fox News that the confirmation of Barrett is “more or less” inevitable and the best way for Democrats to win in November is to avoid getting down in the mud and attacking Barrett during the confirmation fight but instead hammering home the big-picture issues like coronavirus, health care and the economy.

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Indeed, Democrats have depicted President Trump's nominee as a vote against the Affordable Care Act and abortion rights, issues they believe will resonate with voters. Several Democratic senators, including Coons, have said they'll avoid questioning Barrett about her Catholic faith or involvement in religious organizations, which could be a political landmine as Republicans are prepared to pounce.

One aide said Democrats will be focused on the Affordable Care Act scheduled for the Supreme Court a week after the election because there's a reality that Barrett could be a decisive vote on whether the healthcare law is upheld.

“At the end of the day, elections do matter and there's 53 Republican senators and 51 of them are on record saying they want this confirmation to move forward," the aide told Fox News. "And so there's very little the minority can do in that situation when the filibuster no longer applies.”