Can Dems Block Trump’s Supreme Court Nominee?

by Christine Niles  •  •  June 28, 2018   

The short answer: No

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WASHINGTON ( - With Supreme Court Justice Anthony Kennedy's momentous announcement Wednesday that he'd be retiring, the focus now turns to the fight over the new Court vacancy.

Democrats won't have the leverage they've had in the past, as Republicans exercised the "nuclear option" in last year's battle to seat Justice Neil Gorsuch. After heated confirmation hearings, Democrats filibustered the vote, and Republicans made good on their promise to change Senate rules, voting to ensure cloture (the vote to end the filibuster) no longer requires a supermajority.

2017 "Nuclear Option" Votes (Courtesy of the New York Times)

"This will be the first and last partisan filibuster of a Supreme Court nomination," Senate Majority Leader Mitch McConnell vowed at the time.

The change in Supreme Court rules will guarantee that Democrats can't block Trump's nominee to replace Kennedy via filibuster. But the nominee is not a shoo-in; with a handful of unreliable Republicans in the Senate, Trump's candidate — whoever it might be — is not guaranteed enough votes for confirmation.

Senators to Watch

Senator John McCain (AZ) has been absent all year owing to health reasons, and there is a good possibility he may sit out the confirmation vote, making the balance effectively 50 Republicans to 49 Democrats.

And defection by pro-abortion Republican Senators Susan Collins (ME) and Lisa Murkowski (AK) is a real possibility, especially if Trump comes through on his promise to nominate a solidly pro-life judge.

Senator Jeff Flake (AZ) has been no fan of Trump and has even threatened to block any judicial nominees, while Sen. Dean Heller (NV) is facing a difficult midterm race in a state that overwhelmingly went for Hillary Clinton, and will feel pressure to vote against Trump's pick.

Defection by pro-abortion Republican senators is a real possibility.

But Democrat defectors could save Trump's nominee, particularly those running in close races in red states: Sen. Joe Donnelly (IN), Sen. Joe Manchin (WV) and Sen. Heidi Heitkamp (ND). All three cast their votes for Gorsuch last year.

The stakes then, of course, were not as high; everyone understood that Gorsuch would simply be restoring the balance of power on the High Court, with four reliably liberal justices vs. four reliably conservative justices, and Kennedy the unpredictable swing vote.

But the new vacancy opens up the possibility of a fifth conservative vote that could lead to conservatives' long-desired goal of overturning Roe v. Wade, and liberals are already dreading the possibility. "Anthony Kennedy is retiring. Abortion will be illegal in twenty states in 18 months," tweeted Jeffrey Toobin, legal analyst for CNN.

Questions also loom about the permanence of Obergefell v. Hodges (2015), authored by Kennedy, which legalized same-sex "marriage" throughout the country. A fifth conservative vote could undo the legacy of Kennedy on this score, a long-time gay rights activist from the bench.

Hoist by Their Own Petard

On the Supreme Court nuclear option, the Democrats were in fact defeated by a plan they had engineered. In 2013, in a Democrat-led Senate, Majority Leader Sen. Harry Reid called to change longstanding precedent by eliminating the requirement of a supermajority to end the filibuster of lower court nominees. The measure was at the time considered so extreme that it was referred to as the "nuclear option" — and after it was passed in the Senate, Reid held a victory party with fellow liberals.

Republicans at the time called it a raw exercise of political power, and vowed Democrats would rue this day.

"I say to my friends on the other side of the aisle, you'll regret this," McConnell warned at the time. "And you may regret it a lot sooner than you think."

Sen. Mitch McConnell: I say to my friends on the other side of the aisle, you'll regret this.

"Democrats won't be in power in perpetuity," said Sen. Richard Shelby (AL). "This is a mistake — a big one for the long run."

The Democrats' reason for changing the Senate rules was to advance three of President Obama's picks to the D.C. Circuit Court of Appeals — considered the most prestigious and significant federal court after the Supreme Court. But the precedent set by Democrats in 2013 led to the Republicans extending the same nuclear option to Supreme Court nominees in 2017, all but ensuring that Republicans will be able to start stacking the Court in their favor, with an impact on the judicial and moral landscape that may be felt for decades.


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