Law & the Courts

The Democrats Can’t Block Trump’s Next Supreme Court Pick

Justice Anthony Kennedy (L) chats with Chief Justice John Roberts (R) during a Supreme Court family photo session at the Supreme Court building in Washington, DC, June 1, 2017. (Jonathan Ernst/Reuters)
And their attempt to do so will hurt them this fall.

On the morning after U.S. Supreme Court justice Anthony Kennedy announced his retirement, Democratic senators were ready with their top talking point. In appearance after appearance on the cable-news shows, they repeatedly demanded that Senate Republicans adhere to the same “rule” that had guided them in 2016 and wait until after the November elections before voting on a replacement for Kennedy.

But few had their hearts in the effort. Only a day earlier, Democrats, led by the editorial page of the New York Times, had been complaining bitterly about the way Senate majority leader Mitch McConnell had “stolen” a seat on the high court from President Obama by imposing just such a delay. The talk of “letting the people decide” was merely a long-winded way of reminding the country that confirming Trump’s pick would be an exercise in hypocrisy. They’re right about that, but as an opening salvo in a fight that liberals are claiming is nothing less than a judicial Armageddon, it fell spectacularly flat, and every Democrat seemed to know it.

But the problem for Democrats was not just that they were embarking on a fight they had no chance to win. Their real dilemma was that their efforts were being judged by an angry, radicalized Democratic base that is demanding they do anything, up to and including shutting down the Senate and the government, in order to deny Trump and McConnell a fifth conservative justice. With the prospect of a solid conservative court majority being put in place for the foreseeable future and the chance that, without Kennedy restraining it, the court will overturn Roe v. Wade, among other sacred liberal precedents, the liberal base wanted more than a lame talking point that not even Democrats were buying.

This bad start gave the lie to the Democrats’ boasts that the court fight would energize their base and help them win the midterms. It’s true that the future of the Court is a key issue for their voters, just as it is for conservatives. But what makes this a dangerous moment for Democrats is that at a time when “resistance” is the watchword for those opposing Trump, nothing short of burning down the Capitol is going to satisfy a base that thinks their leaders are a tired, defeated establishment that isn’t up to the task of stopping the president and lacks the guts to match the GOP’s willingness to play rough.

The Democrats are essentially powerless to stop McConnell, and they know it. Delaying tactics will fail, since he will, if he has to, keep the Senate in session 24 hours a day, seven days a week until Trump’s pick is confirmed. Nor can they be optimistic about peeling off the two pro-abortion Republican senators (Lisa Murkowski and Susan Collins); even if they succeed, some Democrats facing reelection in states that Trump won will likely defect in the opposite direction. Three Democrats and every Republican voted to confirm Neil Gorsuch.

So rather than inspiring liberal turnout in the midterms, the Kennedy-replacement fight may convince the Left that Senate Democrats are a feckless, spineless collection of politicians who aren’t worthy of support. Instead of flocking to the polls in record numbers, as they did to elect Barack Obama in 2008 and 2012, Democrats may revert to their familiar midterm pattern of low turnout — a pattern that was in evidence in 2014 and helped Republicans get the Senate majority they are using to confirm conservative judges at a record pace.

As for the merits of the arguments about the court fight, everyone knows that both parties have repeatedly changed their positions regarding the norms here.

In 1991, then-senator Joe Biden warned the first President George Bush that the Democratic Senate would not confirm a Supreme Court nomination in a presidential-election year, a point that the current minority leader, Chuck Schumer, repeated to the second Bush in 2007. Yet Presidents Clinton and Obama had court nominees (Justices Breyer and Kagan) confirmed shortly before midterm elections. Democrats ended the filibuster for lower-court confirmations, and then Senate majority leader Harry Reid dared the Republicans to do the same for the Supreme Court, which they did last year when Trump nominated Justice Neil Gorsuch. Everyone knows that both parties are willing to flip-flop on procedure in order to get what they want.

Everyone knows that both parties are willing to flip-flop on procedure in order to get what they want.

Democrats may well spend the next 30 years complaining about how Gorsuch’s seat was “stolen” from President Obama’s nominee, Merrick Garland. It isn’t really true, since the Republican Senate majority had every right to reject any nominee. McConnell’s decision not even to grant Garland a hearing was unprecedented, but the tactic only spared the judge the agony of a nasty confirmation fight that he had no chance to win. Yet whether or not the Democrats’ grievance is really justified, resentment about Garland, like their continued bitterness about Hillary Clinton’s loss to Trump, has become a bloody banner around which they continue to rally.

But as much as their grievance sustains them, it is also a trap. The more they emphasize the consequences of replacing Kennedy with a more consistent conservative, the greater the depression their voters will feel when the next Gorsuch takes the oath of office in time to join the Supreme Court for the opening of the fall term in October.

The irony here for Democrats is that the “resistance” is fueled by their conviction that Trump has violated key norms and threatens the institutions of democracy. Yet if there is one aspect of his presidency that has been completely normal, it is his approach to judicial appointments. He has stuck to the list of qualified conservatives that he made public before his election. No one can pretend that his appointments are any different, in terms of their beliefs or credentials, from those that might have been put forward by any other Republican president. Rather than heralding an era of radical Trumpian madness, Gorsuch and the other Trump judges are just normal constitutional conservatives and a reminder that, his Twitter account notwithstanding, the Trump presidency is for the most part an exercise in conservative rather than extremist governance.

That’s why it’s going to be hard for Democrats to persuade any GOP senators to join them or to keep their own caucus in line, setting them up for failure and the recriminations that will follow.

Democrats aren’t happy about a post-Kennedy Court that will protect religious freedom and freedom of speech in ways they abhor and perhaps even chip away at Roe. As President Obama liked to say, “elections have consequences.”

Yet the Democrats’ more immediate concern should be the way their inevitable defeat in the coming confirmation fight will depress their base and strengthen the forces pushing their party farther to the left in the run-up to 2020. It remains to be seen whether this is a prescription for a revived opposition party or a gift to an otherwise embattled Trump administration. Nevertheless, Democratic activists are going to be judging every member of their party’s caucus on their conduct in the next few months. As their less-than-scintillating performance on the first day of the struggle illustrated, their conclusions are likely to be harsh.

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