Opinion: If Supreme Court filibuster dies, it’ll be Democrats’ fault

President Trump’s announcement today that he’ll reveal his pick for the Supreme Court next week set off a great deal of speculation about not only who will get the nod, but how big a fight Senate Democrats will put up. Here’s why I’d guess their bark will be worse than their bite.

Mitch McConnell could pull a Harry Reid if Senate Democrats push too hard against President Trump's Supreme Court nominee. (Mark Wilson / Getty Images)

Mitch McConnell could pull a Harry Reid if Senate Democrats push too hard against President Trump’s Supreme Court nominee. (Mark Wilson / Getty Images)

When Harry Reid pulled the nuclear option on all presidential appointments but the Supreme Court, he not only wiped away longstanding Senate custom. He also made it much easier politically for a Senate majority to do the same with Supreme Court appointments, if only because the precedent has now been set for nominees needing only a simple majority to be confirmed. We’re watching that play out right now during the confirmation process for Trump’s cabinet, so there’s a certain desensitization to the idea of one party being able to push through a president’s choices. And while we can’t know what would have happened last year had Democrats still been in charge, it’s highly plausible Reid would have gone nuclear again to get Merrick Garland on the high court. After all, most if not all modern innovations regarding the judicial confirmation process — from “borking,” to “high-tech lynching,” to suggesting appointments shouldn’t be made in election years, to nuking the filibuster for lower-court appointees — were made by Democrats.

So Reid gave away all negotiating leverage his party might have had. Before, they might have been able to argue that, before taking such a drastic step with Supreme Court nominations, the Senate should take the smaller step of disallowing the filibuster for lower-court judges. Now Democrats have no such thing to offer as a bargaining chip.

And they will have to decide exactly how hard they want to push on this appointment. Push too hard, and Republicans will simply follow their precedent and kill the filibuster for these nominations, too. That could lead to a bigger fallout down the road.

The current seat is vacant, of course, because of the death of Antonin Scalia. Replacing him with another conservative merely restores the court’s previous balance of four judges who are reliably conservative, four who are reliably liberal, and Anthony Kennedy in the middle. Do Democrats really want to go to the barricades against a conservative replacement for a conservative jurist, possibly leading to the nuclear option, when the next vacancy under Trump could be one of the court’s liberals? I wish no one ill, but in this context it’s worth observing that the three oldest justices are Ruth Bader Ginsburg (83), Anthony Kennedy (80), and Stephen Breyer (78). The oldest conservative, Clarence Thomas, is a decade younger than Breyer at 68.

Republicans rolled the dice big-time last year in betting they could hold out for a GOP president to name Scalia’s replacement. Democrats have to ask themselves if they feel that lucky.

Reader Comments 0

54 comments
ATLAquarius
ATLAquarius

Go for it....just don't start crying once the shoe is on the other foot.

Bruno2
Bruno2

Just dropped by for a minute, and couldn't help but notice the difference in quality of the Con posts vs. the Lib posts.  The Cons generally compose thoughtful posts, full of substance and in paragraph form.  The Libs??  A whole bunch of mindless, one line childish insults devoid of facts or reasoning:

More blathering from a radical activist right winger.

 You're spewing nonsense that has no basis in reality whatsoever.

 You have zero credibility . 

 You ever think of writing dystopian children's fiction?

 You really are a joke.  No credibility whatsoever. 

 You sound like a traitor who hates the Constitution and wants to legislate radical right wing evangelical garbage.

 We don't do that in America, you should move to another country traitor.

 Obviously, the person you are writing about used facts rather than alternative facts that you would like better.

 Is this idiocy supposed to be called reasoning? 

 Facts are being replaced by alternative facts. Evidence is what Donald Trump believes.

We have moved to an alternative universe.

 What a bunch of balderdash, felicia. 

Another day ending in 'y' and full of felicia's trademark schnirt.


Doom a classical liberal
Doom a classical liberal

@Bruno2


"The Libs??  A whole bunch of mindless, one line childish insults devoid of facts or reasoning:"


You didn't really expect any better did ya. If  they can't win the debate, and they can't, then their stock in trade is just the usual litany of insults and over the top rhetoric devoid of any logic or rational thought. I've even got one of them, probably Eye sore, trolling me with my same handle LOL!. Either I've got the biggest copycat fan out there or I've got a typical prog troll. I'm betting on the latter. Either way its kinda amusing. 

BuckeyeGa
BuckeyeGa

@Bruno2 The Cons generally compose thoughtful posts, full of substance and in paragraph form.  The Libs??  A whole bunch of mindless, one line childish insults devoid of facts or reasoning:========================================= it's laughable you believe that

stogiefogey
stogiefogey

@Bruno2 "A whole bunch of mindless, one line childish insults..."

That was very much in evidence in the recent WDC etc. street demonstrations; the vulgar, obscene language displayed on some of the signs they waved around told the world all it needed to know.

RobDawg
RobDawg

Where in the Constitution does it state "merely restores the court’s previous balance" for the supreme court Kyle? Educate me

FIGMO2
FIGMO2

@RobDawg

IT doesn't, but the president DOES get to nominate a candidate that reflects his or her political philosophy.

Nowhere in the Constitution does it say nominees are required to be "borked", "lynched", or held at bay until an "election" rolls around.

The Constitution doesn' t require that the Senate hold hearings whereby they can grill the nominee. It makes no mention of what constitutes a quorum, nor does it require an absolute majority, a majority of those voting, or even a super majority to seat a justice.

Looks to me like it's the Democratic Party who's taken liberties where our Constitution is concerned.

Eye wonder
Eye wonder

@FIGMO2 @RobDawg

What a bunch of balderdash, felicia. Another day ending in 'y' and full of felicia's trademark schnirt.

Caius
Caius

@FIGMO2 @RobDawg The Constitution only requires a simple Senate majority vote to exercise the "Advice and Consent" clause in Article II Section 2.

AndyManUSA#45
AndyManUSA#45

 Donald J. Trump

Verified account@realDonaldTrump FollowMore

I will be asking for a major investigation into VOTER FRAUD, including those registered to vote in two states, those who are illegal and....even, those registered to vote who are dead (and many for a long time). Depending on results, we will strengthen up voting procedures!


There goes 3 to 5 million votes the democrats no longer have.



AndyManUSA#45
AndyManUSA#45

I can see that obozo has stepped right into his new role as leader of the post President Trump democrat party, not by marching with the women or manning the fortifications, but by going on vacation. 


He really is your leader, isn't he?

SGTGrit
SGTGrit

Some our asking for proof that we've had illegals casting votes in our country. The proof is that there have been people caught voting illegally and it would be absurd to think given the number of illegal immigrants in this country that some haven't been able to vote particularly in the "sanctuary cities. That is why Democrats are in disfavor of voter ID.

MarkVV
MarkVV

Facts are being replaced by alternative facts. Evidence is what Donald Trump believes.

We have moved to an alternative universe.

LaToyaHill
LaToyaHill

And of course, the Democrats will all insist that, when WE did it, it was different....somehow.

AndyManUSA#45
AndyManUSA#45

According to Pew Research, there are 11.3 million illegal immigrants in this country. I'm thinking that this number is like way low but, for the sake of this exercise, let's go with it. On top of this number, we can add the massive number of legal immigrants who are not yet citizens, the syrians, iraqis, chinese and wtf else obozo let in during his reign of treachery. Let's put this number at 3.7 million, again, way low. 


Can we all agree that none of these squatters on our sovereignty^^ are allowed to vote? 


1 in 3 of legal citizens of the United States cast a vote for their choice of president. If you apply the 1 in 3 ratio to the number of squatters this country has, that's 5 million illegal votes. 


When are we going to stop this?

MarkVV
MarkVV

@Doom classical lib Obviously, the person you are writing about used facts rather than alternative facts that you would like better.

breckenridge
breckenridge

I don't know who his Supreme Court pick will be, but if it's some radical activist anti-choice pile of useless filth then he's not need on the Court.  It's time to drive a stake through the heart of the traitorous and anti-constitutional social conservative movement. 

SGTGrit
SGTGrit

@breckenridge  Well Breckenridge, if the nominee upsets you I'll say wonderful lets hope the senate confirms that selection to the SCOTUS.

breckenridge
breckenridge

@SGTGrit @breckenridge 

Hmm. You sound like a traitor who hates the Constitution and wants to legislate radical right wing evangelical garbage.  We don't do that in America, you should move to another country traitor.

FIGMO2
FIGMO2

It would serve dems right.

schnirt

Please let it be Gorsuch.

SGTGrit
SGTGrit

The DOW is a stones throw away from breaking another historic mark. Thank you President Trump, for restoring vitality within our private sector business community and your presidency has only just begun.

MarkVV
MarkVV

@SGTGrit The DOW is a stones throw away from breaking another historic mark. Thank you President Obama.

AndyManUSA#45
AndyManUSA#45

Everyone knows that the illegals swung the popular vote to hillary, just look at the vote totals in kalifornia, where immigrants are 47% of the population and crazed liberals have set up sanctuary cities where illegals are free to prey on and kill innocent legal citizens. I'm so sure that every effort is being made to keep them out of the polling booths, uh huh.

AndyManUSA#45
AndyManUSA#45

President Trump will shut it down.


And you libs will never hold elected office again.

breckenridge
breckenridge

@AndyManUSA#45 

More blathering from a radical activist right winger.  You're spewing nonsense that has no basis in reality whatsoever.


You have zero credibility .

bu2
bu2

Kyle, thanks for the laugh.  Don't know if the reference was intentional, but I can just see Clint Eastwood going up to Sen. Schumer, "You've got to ask yourself one question.  Do I feel lucky?  Well, do ya, punk?"

Hedley_Lammar
Hedley_Lammar

President Donald Trump believes millions of votes were cast illegally in last year's election, White House press secretary Sean Spicer said on Tuesday, but he wouldn't provide any concrete evidence for the claim, which has long been debunked.

"The President does believe that, I think he's stated that before, and stated his concern of voter fraud and people voting illegally during the campaign and continues to maintain that belief based on studies and evidence people have brought to him," Spicer said.

This idiot, a birther nutcase, is now head of our govt.


Someone this divorced from reality has the nuclear codes.


God help us

SGTGrit
SGTGrit

Kyle, great commentary and quite accurate. The former senate minority leader Harry Reid shot himself and every other Democrat senator in the foot before he went into retirement.

Hedley_Lammar
Hedley_Lammar

@SGTGrit Not really


The pendulum has swung about as far to the right as it can with Trump and the ALT-Right alternative facts crowd in charge now.


Its gonna swing back.

SGTGrit
SGTGrit

@Hedley_Lammar @SGTGrit  If your party is indeed smart and I have my doubts, they will boot the far-left out the door as far as they can and move back to the center left. I think the far-left control is too pervasive for that to happen.

Hedley_Lammar
Hedley_Lammar

@SGTGrit @Hedley_Lammar Nah


The country is progressive and getting more so by the day. The younger generation doesnt cling to white nationalism etc.


Its the far right crowd that is out of step

Hedley_Lammar
Hedley_Lammar

 Republicans rolled the dice big-time last year in betting they could hold out for a GOP president to name Scalia’s replacement.


Yup. They stole it. Longest wait for a vote in history.



lvg
lvg

Why not just leave it up to Putin to approve the nominee since he is running the  show.

McGarnagle
McGarnagle

Such insanity that the supreme court has become much politicized. This will further divide the country.


Nevertheless, emotions are running high since president Trump took office. But I hope the senate democrats back off for now until Trumps approval ratings get even lower and they have more political clout to influence the next court pick.

AndyManUSA#45
AndyManUSA#45

Back in those days, the democrats had a big beautiful blue wall and with Jeb! being her only opposition, hillary was inevitable. My, how things have changed. So much so that the democrats will most likely hold only 38 Senate seats in just a couple of years and then will be redistricted out of existence. 


And it will be well deserved. Why the 11-10 vote on Tillerson? Is this not a clear sign that the liberals have overwhelmed all rational thought? Only a handful of kook Republicans voted against obozo's cabinet choices in 2009, and they were extremists. Republicans were playing the long game back then, not shooting their wad at everything that moved, hoping to receive concessions on the important issues. Tillerson shouldn't have mattered one whit to the democrats but yet they climbed the ramparts over him for no good reason at all. They've gone all in.


And they should be responded to in kind.

Caius
Caius

The Constitution only requires a simple Senate majority vote to exercise the "Advice and Consent" clause in Article II Section 2.

Anything else is a mindless invention of a weak Senate that prefers the Executive take the heat on decisions. If a nominee can get 51 votes in the Senate he has and deserves the job.

Whoever gets the artificial, non-constitutional, 60 votes to end filibusters off the Senate rules will have my hardy thank you.

What's the harm in following the Constitution?