The retirement of Justice Anthony Kennedy means President Trump has an opportunity to shift the Supreme Court to the right for a generation to come, potentially reshaping the laws on everything from gerrymandering to affirmative action to gay rights, and of course, abortion.
So what can Democrats do to stop their nightmare from becoming a reality? Probably just complain — but some begrudge them even that.
Though the timeframe will be a bit tight, Republicans made it clear on Wednesday that they intend to have a new justice in place before the midterms. Trump said his search for a nominee will start “immediately,” and confirmed that he’ll pick someone from his previously released, Federalist Society–approved list of 25 candidates (rather than some Hannity guest he finds entertaining).
Senate Majority Leader Mitch McConnell, who already called off the August recess, said the Senate is prepared to start the confirmation process as quickly as possible.
“The Senate stands ready to fulfill its constitutional role by offering advice and consent on President Trump’s nominee to fill this vacancy,” McConnell said. “We will vote to confirm Justice Kennedy’s successor this fall.”
Aside from getting the job done while Republicans are sure they’ll still have a slight majority in the Senate, the plan is to remind the GOP base just before the midterms that despite the general chaos, Trump is fulfilling his promise to appoint conservative justices.
Democrats hope that having so much on the line will fire up their base too — though lawmakers might have trouble matching voters’ fervor. As MSNBC’s Chris Matthews put it, “I think if the Democratic leadership under Schumer allows [Trump’s nomination] to go forward, they’re going to have a huge problem with the Democratic base.”
The reality is Democratic senators don’t have much power to stop this. Despite some futile calls for Trump to replace the Supreme Court’s “swing vote” with a centrist, he’s very likely to pick a conservative with a clear interest in overturning Roe v. Wade. At first glance, the numbers don’t seem so bad: since there are only 51 Republican senators and John McCain is out battling brain cancer, just one Republican could derail the confirmation. But the two pro-choice Republican senators, Lisa Murkowski and Susan Collins, have generally supported Trump’s Cabinet and judicial nominations. Plus, their “no” votes could be offset by the three red-state Democrats — Joe Manchin, Joe Donnelly, and Heidi Heitkamp — who backed Trump’s last Supreme Court nominee, Neil Gorsuch.
Since McConnell already nuked the filibuster — lowering the threshold for Supreme Court confirmations from 60 votes to a simple majority — to ensure Gorsuch would make it onto the Court, the Democrats’ next best option is hoping that Senator Jeff Flake is so passionate about blocking Trump’s judicial nominees over a vote on tariffs that he’s willing to make an enemy of every conservative in the country.
Democratic lawmakers can’t put things as indelicately as the cover of the Daily News, so they opted to demand that McConnell delay the vote until after the midterms, reminding voters that he stole a Supreme Court appointment from President Obama when he refused to give his nominee, Merrick Garland, a hearing.
“Our Republican colleagues in the Senate should follow the rule they set in 2016 not to consider a Supreme Court justice in an election year,” said Senate Minority Leader Chuck Schumer. “Millions of people are just months away from determining the senators who should vote to confirm or reject the president’s nominee, and their voices deserve to be heard now as Leader McConnell thought they should deserve to be heard then.”
“Anything but that would be the absolute height of hypocrisy,” Schumer added.
Senate Minority Whip Dick Durbin agreed, saying: “The American people will decide the majority in the United States Senate. Following the tortured logic of Mitch McConnell, let’s let the American people speak.”
Talking Points Memo counted 12 other Senate Democrats who issued similar calls, including Kirsten Gillibrand, Kamala Harris, Bernie Sanders, and Elizabeth Warren. Journalist Chuck Todd, who is apparently unfamiliar with McConnell’s work, joined Democrats in wondering how the GOP could justify such hypocritical behavior.
But McConnell quickly offered up an answer, telling reporters, “There’s no presidential election this year.”
Senator James Lankford, a fellow Republican, came to McConnell’s defense, saying blocking Supreme Court nominations every four years is one thing, but every two years is extreme. “That was a presidential election year, so that was very, very different,” Lankford said of Garland’s nomination. “We’re not in a presidential election year. The last time it was a new president being elected. … I would say, if you say ‘Every two years you can’t do a new nominee,’ that would be a lot.”
The New York Times noted that technically, Republicans are correct. In a statement released on the night Justice Antonin Scalia died, McConnell said: “The American people should have a voice in the selection of their next Supreme Court justice. Therefore, this vacancy should not be filled until we have a new president.”
Later, in a Fox News interview, McConnell added, “All we are doing is following the long-standing tradition of not fulfilling a nomination in the middle of a presidential year.”
The Times pointed out that the “tradition” McConnell cited is entirely made up. But it’s important for Democrats to be fair: the majority leader did clearly state that his imaginary rule was about presidential years:
Still, it is clear from statements, news conferences, interviews and in speeches on the Senate floor, Mr. McConnell consistently and specifically said that “the presidential election process” — and not “a lame-duck president” — should decide the next Supreme Court justice.
He did not explicitly set a precedent for refusing to consider court nominees in all election years, as Democrats say now.
The Washington Post elaborated further on the “bogus argument” being put forth by Democrats:
The GOP did argue in 2016 that a Supreme Court vacancy shouldn’t be filled until after voters had their say in the coming election, but their argument was about who gets to nominate the justice — not who gets to confirm him or her. It was clearly about presidential election years, not midterms.
Sure, when justifying his plan to steal a Supreme Court seat, McConnell misconstrued something then-vice-president Joe Biden said about Supreme Court confirmation hearings decades earlier — but the Post says that’s no excuse for Democrats to start stretching the truth:
But just because Republicans misconstrued what Biden said in 1992 doesn’t give Democrats license to misconstrue what Republicans said in 2016. And whatever you think of the justification offered to block Garland, it was clearly in reference to presidential election years, not midterms.
This is grasping at straws, in the truest sense.
Democratic lawmakers might be desperate to find something they can say to let their base know that they share their anger, even though shaming is pretty much the only tool they have left. But if Democrats get a pass to be imprecise when complaining about McConnell’s brazen scheme, what will happen to our democratic norms?