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.
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.