Democrats can still defy Donald Trump and retain control of a crucial Supreme Court seat, activists say

The move would use an unlikely and untested procedure – but the election has come to be defined by them

DC area students protest the election of President-elect Donald Trump in front of the US Supreme Court (Mark Wilson/Getty Images)

The Democrats should make use of a strange, untested procedure that would let them keep control of the Supreme Court, activists have said.

When Donald Trump takes up the Presidency in January, he will have control over who is appointed to the Supreme Court. That choice will be confirmed by the Senate, which the Republican Party also now controls.

That will mean that together they will be able to fill the slot that was left on the court by Antonin Scalia, who died earlier this year.

Barack Obama has looked to fill that space with Merrick Garland, a progressive judge. But the Republicans have blocked that decision and are instead waiting to fill it with a nominee of their own – one likely to be at the conservative end of the spectrum of Supreme Court judges.

But Democrats may be able to avoid that decision with a very strange quirk of the US system, activists have said.

Blogger David Waldman has suggested that because of the way the Senate will be filled up with new senators, the Democrats will have control of it for just a few minutes on 3 January next year. For just a few minutes, the new Republican senators won’t have been sworn in and so won’t be able to vote down any new laws.

During that very short period of time, Joe Biden could convene the Senate and call for a vote on the new judge.

The plan is both unlikely and unprecedented, and would likely enrage the Republican senators who have blocked the appointment of Mr Garland. But it is one of a range of technical and procedural measures that activists have looked to in the wake of the election – which have also included campaigns to encourage “faithless electors”, who could still stop Donald Trump from becoming President.

Republicans could then respond by using “court packing”, a move that has been contemplated in similar situations in the past. That involves electing more judges – over and above the nine judges that usually sit on it – so that they can then get a majority on the court.