The Jury Talks Back

1/31/2017

Democrats May Be Backing off Threat to Filibuster Any Trump Supreme Court Nominee

Filed under: Uncategorized — Patterico @ 9:00 am

Yesterday, Senator Jeff Merkley of Oregon made the oafish announcement that he planned to filibuster President Trump’s Supreme Court pick, no matter who it was. Speculation ran rampant on the right that this was part of a larger plan by the Democrat Senate leadership. If so, they may be reconsidering:

Senate Democrats are weighing whether to avoid an all-out war to block President Donald Trump’s upcoming Supreme Court pick, instead considering delaying that battle for a future nomination that could shift the ideological balance of the court, sources say.

Democrats privately discussed their tactics during a closed-door retreat in West Virginia last week. And a number of Democrats are trying to persuade liberal firebrands to essentially let Republicans confirm Trump’s pick after a vigorous confirmation process — since Trump is likely to name a conservative to replace the late conservative Justice Antonin Scalia.

The reason for the tactic: Republicans are considering gutting the filibuster for Supreme Court nominees if Democrats stay largely united and block Trump’s first pick. By employing the so-called “nuclear option,” Senate Majority Leader Mitch McConnell could move to reduce the threshold for clearing a filibuster from 60 votes to 51 votes.

That would mean Democrats could lose leverage in the next Supreme Court fight if Trump were to replace a more liberal justice, since the GOP now has 52 seats in the Senate.

Of course, this may just be a move to undo the rhetorical damage from Merkley’s ham-handed declaration. This way, now they can pretend that their filibuster was really because this particular nominee (read: anyone Trump names) was just so, so extreme!

It really is the wrong time for Democrats to go ballistic. Justice Scalia was one of the most conservative justices in decades. No matter who Trump names, it will maintain the balance of power that has existed for years — one that has brought plenty of victories for the left. Sure, the left would like to make some gains, but you have to win a Presidency and some Senate races to do that, don’t you?

Given Mitch McConnell’s recent unwise declaration that the nuclear option is off the table, the Democrats’ decision whether to filibuster the nominee announced today will be very consequential.

[Cross-posted at RedState.]

10 Comments »

  1. It was an abuse of power for Sen. McConnell to announce, before a nominee was even put forward, that the Senate would not hold hearings or confirm *any* nominee.

    It is also an abuse of power for Sen. Merkley to announce, before a nominee is even put forward, that the Democratic caucus will filibuster *any* nominee.

    I objected to McConnell’s behavior then, and I object to Merkley’s behavior now. He should withdraw the threat.

    Comment by aphrael — 1/31/2017 @ 11:14 am

  2. Not gonna happen, aphrael. At least not in such a direct way. Bruised egos take a very long time to heal, if ever.

    Comment by Bill H — 1/31/2017 @ 12:40 pm

  3. @aphrael:it was an abuse of power for Sen. McConnell to announce, before a nominee was even put forward, that the Senate would not hold hearings or confirm *any* nominee.

    I disagree. The Senate and the President have to agree on nominees, that’s in the Constitution. Whether the form of that rejection be a negative vote, or just not having hearings, doesn’t matter.

    The President could at any time have withdrawn his nomination–as Bush had to, twice–and put forward someone the Senate would have accepted.

    Neither the President nor the Senate is entitled to their way. They are obligated to agree, and if they can’t nothing happens. It is not wrong for them to disagree. It is not wrong for them to refuse to have hearings. Obama could have got his hearing by providing a name the Senate would have wanted to have hearings about.

    Of course all this is equally true for Trump.

    Now while it might be stupid for the Democrats to say they will hold their breaths and turn blue before they will allow a hearing on any Trump nominee, but it’s not wrong and it’s not an abuse. Trump has the power to nominate someone they would want to approve.

    Comment by Gabriel Hanna — 1/31/2017 @ 2:00 pm

  4. > The President could at any time have withdrawn his nomination–as Bush had to, twice–and put forward someone the Senate would have accepted.

    In normal process I agree. The abuse was in declaring that there was *no nominee the President could put forward who was acceptable*.

    Refusal to confirm Garland on the grounds that he was unacceptable would not have been an abuse. Refusal to consider anyone at all *was*.

    Similarly, here: if Merkley can make a case that a particular nominee should be filibustered because he or she is unacceptable, that’s fair game – but a blanket objection to *any* nominee isn’t.

    Comment by aphrael — 1/31/2017 @ 2:14 pm

  5. The abuse is the end of the days where a president pretty much got whomever he nominated confirmed. Elections were understood to have far reaching consequences – most especially in the make-up of the courts.

    Absent some genuinely awful revelations, nominees were given the benefit of doubts.

    In the cases of Hardiman and Gorsuch, what would be the point of contentious hearings? They were affirmed by voice vote, and 95-5. What outrage has either of them done on the bench since their first confirmations?

    Comment by Ed from SFV — 1/31/2017 @ 2:33 pm

  6. It was an abuse of power for Sen. McConnell to announce, before a nominee was even put forward, that the Senate would not hold hearings or confirm *any* nominee.

    I thought that it was simply bad tactics rather than an abuse of power. What I think McConnell should have done in that case is say something like, “Given that President Obama has disregarded the traditional separation of powers by issuing Executive Orders in matters where the legislative branch should be crafting policy, we will respond in kind by refusing to confirm any nominee he sends to us. If President Obama would like to de-escalate this matter then he should sit down with Congressional leaders and agree to rescind his unlawful orders at which point we will work out a schedule to consider his nominees.”

    Comment by JVW — 1/31/2017 @ 4:28 pm

  7. If we want to trace the original abuse, wouldn’t it be letting SCOTUS become a branch of the legislature in the first place? I’m curious to hear the thinking here (especially from the Article V Convention advocates) what might be done to limit the ability of SCOTUS to rule on Constitutionality without the ability to write law, re-write it, or insist on expansive and expensive remedies.

    But given the present state of affairs, telegraphing an intention to filibuster any nominee destroys any incentive Trump may have had to select a relatively moderate candidate, hoping for a smoother confirmation. If Scalia were replaced with a moderate, how would that have been a loss for Democrats? And yet that’s the very outcome they have effectively discouraged.

    I suspect there’s going to be a lot of rhetorical toothpase the Democrats are going to try to put back in the tube over the next four years.

    Comment by Quibus Vigilius — 1/31/2017 @ 5:11 pm

  8. @aphrael: The abuse was in declaring that there was *no nominee the President could put forward who was acceptable*.

    I would have to see a direct quote, but even I saw it I can tell you that is hyperbole. If Obama had nominated Gorsuch or any other principled conservative, he’d have got a hearing and got confirmed. Obama didn’t wanna nominate someone acceptable to the Senate. Obama never asked the Senate, to my knowledge, what they would find acceptable.

    No, there is no abuse. They have to agree. It doesn’t matter why they can’t agree if they can’t, or what form the disagreement takes.

    Comment by Gabriel Hanna — 1/31/2017 @ 6:45 pm

  9. >I would have to see a direct quote, but even I saw it I can tell you that is hyperbole.

    Sen. McConnell declared *before President Obama nominated anyone*, and in fact *on the order of an hour after Justice Scalia’s death* that the vacancy should remain open until after the election.

    http://www.politico.com/story/2016/02/mitch-mcconnell-antonin-scalia-supreme-court-nomination-219248

    Comment by aphrael — 2/1/2017 @ 10:51 am

  10. Tillerson has been confirmed. The vote is currently 56-43. However, Collins and Murkowski say they will not approve DeVos. Education may be the hill on which the Democrats want the big fight.

    Comment by DRJ — 2/1/2017 @ 11:59 am

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