After igniting a legal firestorm with his sloppily drafted and hastily implemented travel ban, Trump is now going to try to nudge the news cycle along by announcing his pick to fill the late Antonin Scalia’s Supreme Court seat tomorrow night on live TV.
That’s a new one, and so, too, is the announcement in advance by Jeff Merkley that he and the “vast majority” of Senate Democrats will filibuster whomever Trump appoints. You can expect Republicans to scream about partisan bias and obstruction, but Democrats will counter, as Merkley did, by calling attention to the GOP’s unprecedented refusal to offer even hearings for Barack Obama’s nominee for the Scalia seat, Merrick Garland:
“This is a stolen seat. This is the first time a Senate majority has stolen a seat,” Merkley said in an interview. “We will use every lever in our power to stop this.”
What this probably means from a practical point of view is that, after some wrangling back and forth, Mitch McConnell will, as he has long suggested (and as Donald Trump has suggested as well), invoke what is called the “nuclear option” and kill filibusters of Supreme Court nominees once and for all. Only McConnell knows how many crocodile tears he will first shed about the sacred Senate precedents Democrats are forcing him to violate, and how many times he will blame the action on his Democratic predecessor as Majority Leader, Harry Reid, for nuking the GOP’s use of the filibuster to block most of Barack Obama’s executive-branch and lower-federal-court nominees, in 2013. But unless there’s some elaborate deal McConnell wants to cut that somehow moots the issue, or unless Democrats relent and preserve the filibuster for future use (against, say, a second Trump SCOTUS nominee who could form a majority to overturn Roe v. Wade), it’s all Kabuki theater at this point.
As to the identity of Trump’s pick, all we know for sure is that she or he will come from the list of prospects Trump released during the campaign. It was vetted by both the Heritage Foundation and the conservative legal group the Federalist Society, so there is zero chance it will be someone conservatives would dislike and progressives would like. Word is, as I wrote about last week, the choice is really down to three circuit court judges: Neil Gorsuch, Thomas Hardiman, and William Pryor. The odds on Pryor are not great, since he has recently annoyed conservatives and has said the sort of things liberals will cite to justify a filibuster. But again: This is high political theater, beginning with tomorrow night’s Trump TV show.
A lot of Republican had their patience and confidence tested by the airport chaos over the weekend. The SCOTUS pick will likely remind conservatives of the rewards they will eventually harvest — pro-business and anti-regulatory judicial precedents, protection for big GOP priorities like Citizens United and the gutting of the Voting Rights Act, and, someday, the bright shining goal of being able to keep women from controlling their reproductive systems — if they just put up with Trump’s other legal shenanigans. You can expect the relative youth of the nominee to get a lot of attention from conservatives once the name is revealed. It could mean decades of reactionary jurisprudence, all for the price of accepting Donald J. Trump.