I’m not going to complain that new Senate Minority Leader Chuck Schumer is talking tough about filibustering any Supreme Court nominee that Donald Trump offers, even to the point of leaving the position open for his entire four-year term in office. But I think he’s getting people’s hopes up and that he’ll disappoint anyone who actually believes him.
What the Republicans did in blocking Merrick Garland was unconscionable, but it was exactly what I predicted they would do the day that Antonin Scalia died.
Look what happens when I take an afternoon off to visit with my parents and cousins and uncles. Antonin Scalia dies suddenly on a ranch in Texas and all hell breaks loose.
Long time readers of this blog know that I have a policy of speaking no ill of the dead for a decent interval after their passing, even when we’re talking about horrible people.
My policy stands, which in this case means that I can’t say virtually anything at all.
My relatives asked me what it means. I told them that it meant that the next president would select his replacement.
Of course, President Obama has the constitutional duty to name his replacement, and I’m sure he’ll nominate someone, perhaps in consultation with Clinton and Sanders. But the Republicans have already announced that no nominee is acceptable. I knew they would do that the moment that I heard that Scalia is dead.
We’ll try to shame them, but we all know that they’re shameless.
A little while later, I explained that blocking Garland was key for mobilizing social conservatives to turn out to vote for Trump. Some might argue that they would have embraced him at the same level without control of the Court being on the line, but I simply disagree. I think it was a stroke of strategic brilliance to block Garland and that the main idea was never that Trump could win, but that it would prevent a ticket-wide collapse that would cost the Republicans the Senate and maybe even the House.
Schumer is correct to insist that Trump nominate someone in the middle which he says is something that is “hard for me to imagine.” And the Democrats may very well stand up and block Trump’s first nominee. But one of two things will happen. Assuming the threat of eliminating the (apparently useless) filibuster doesn’t collapse Democratic resolve in the first instance, it will collapse their resolve in the second instance. Or, the Senate Republicans will just go ahead and remove the filibuster. At most, the Republicans will tolerate one blockage, and I doubt even that, but they will never countenance a total veto of any conservative Justice.
There is a small chance that hardline Democratic opposition will result in a less radical Justice than the Republicans prefer, which is enough reason to take the position Schumer is taking. But there’s a rancid amount of skepticism right now in this country that our politicians ever have the intention of keeping their promises, and there will be a price paid for setting the expectation that Democrats will fight tooth and nail if they are going to acquiesce in the end.
The worst reason to cave is to preserve the filibuster, as this is the main event and the only reason to have it. If they won’t use it in a situation like this, where a Supreme Court seat (and control of the Court) has literally been stolen from them, then they’ll never use it and it isn’t worth having.
But the Democrats are not going to keep a seat vacant for four years even if the GOP would somehow allow it.
The best outcome would be to fight until the Republicans lose their patience and remove the filibuster, because then the Dems could honestly say that they fought with every tool in their arsenal. And I think the base needs to see them keep that promise.
I just don’t want this all to end not only in judicial catastrophe, which is unavoidable at this point, but in an increase in cynicism and apathy resulting from one more example of politicians not keeping their word.
And, let’s be honest, even if the Democrats succeed in getting a more moderate Justice on the Court, that person will never be perceived as acceptable to the left.
It seems to me that it would be better to set expectations accordingly even if this has the stench of defeatism. The long-term matters more than the short-term.
Make them nuke the filibuster, then vote in lockstep against whomever they nominate. The best we can hope for. Although, I’m betting a couple of dems cave and vote to confirm.
Although, I’m betting a couple of dems cave and vote to confirm.
Yes, Manchin and Heitkamp. Though it will save neither of them.
That’s, sadly, probably the best case scenario, and therefore doubtful.
And, let’s be honest, even if the Democrats succeed in getting a more moderate Justice on the Court, that person will never be perceived as acceptable to the left.
And what would qualify as a “moderate justice? Garland wasn’t a moderate. 30 years ago, the GOP would love Garland’s fealty to the “law & order” crowd. Put it another way, Garland would never be a friend to BLM or any group trying to hold police accountable.
Fortunately the SC only hears Fourth and Fifth Amendment cases.
Sure, but at the same time, progressives need something. If we don’t get a few wins, the base will be demoralized, right when they most want to make a difference.
Democrats shouldn’t pre-emptively surrender whenever they might end up losing. That cedes too much ground.
I like Schumer’s rhetoric right now. Let’s support his desire to obstruct the radical right wing agenda.
Here’s something happening today: the League of Women Voters is supporting a “Call-In Day” to Congress today to challenge Trump’s conflicts of interest:
The League is joining with allied organizations for a Hill Call-In Day urging Congress to address President-elect Trump’s unprecedented and unconstitutional conflicts of interest. The calls will support a forthcoming bill from Senator Elizabeth Warren that will require the President to divest ownership of businesses and disclose all business dealings in order to avoid severe unconstitutional conflicts of interest…
To participate, call the below numbers to connect with your two Senators and your one Representative between the hours of 9 am and 5 pm EST [today], Wednesday, when congressional offices are open. You will be automatically connected to your appropriate congressional offices based on the zip code you provide.
Senate – 1-866-985-2543
House – 1-866-948-8977
Script:
President-elect Trump has conflicts of interest that are unprecedented for an American president. He could violate the Constitution and the law on his first day in office because of prohibited payments to him from his foreign and domestic businesses. Every other President and cabinet official before him has acted to avoid these types of conflicts of interest.
Mr. Trump has not fully disclosed how he will resolve these dangerous conflicts. Americans have been given little more than vague pledges about transferring operations and nothing about transferring ownership. Bi-partisan ethics officials from Republican and Democratic administrations agree this is completely inadequate and does not resolve his dangerous conflicts.
Congress must act to protect the interests of the American people and the integrity of the presidency. President-elect Trump must resolve his conflicts of interest and Congress must require that he disclose his finances and divest his business conflicts.
House call: Ask your Representative to call for a congressional investigation to review Mr. Trump’s business dealings in order to identify and protect against conflicts of interest.
Senate calls: Ask your Senators to call for an investigation to review Mr. Trump’s financial arrangements. Urge Senators to support Senator Warren’s new bill that will require the President-elect to divest ownership and disclose all business dealings in order to avoid serious and unconstitutional conflicts of interest.
I like Schumer’s rhetoric right now.
Welp!! Cheeto Mussolini called Schumer a clown this morning. How will Schumer take that?
I care about Schumer successfully organizing his Senators to obstruct Trump and McConnell. Let’s help him do that and reward good behavior.
I don’t care what Trump has to say about it. It doesn’t sound like Schumer cares about what Trump says either.
I think its worth mentioning some history. When Bork was rejected, most on the right said that Democrats would regret it and his replacement would be even more conservative. We ended up with Kennedy.
I’m not saying history will repeat, and I’m generally not in favor of doing to Trump what Republicans did to Obama. However, I think the Supreme Court is a place to fight. I would be amenable to a compromise that gets Garland and whoever Trump picks for the 2nd nominee. But I doubt Rs would accept it even though it still moves the court to the right since it replaces a far right Scalia with a moderate Garland and a leftie with a rightie.
Recall that Democrats held the Senate majority when Bork and Kennedy were nominated.
The “deal” that you’ve suggested would play right into the GOP hands. The difference in judicial philosophy and positions between Garland and Scalia is significant but not extreme. Acquiring a centrist to fill Scalia’s seat in consideration for anyone the GOP wants to fill the next open seat result in Garland and a Bork-like filling what had once been Scalia and a centrist or very liberal seat. IOW — it would shift the court to the right. Extremely so if the next open seat is Ginsberg or Breyer.
Court will be shifting right anyway since Ginsberg or Breyer are probably going to die before 2020.
Were you able to accurately predict Scalia’s death?
John Paul Stevens retired at age 90. At 96 he attended a World Series game.
We may not see another opening on the court for at least eight years.
Good for them, it’s still more likely for them to die than not. Note: I’m not advocating for whatever the compromise plan is.
I think Democrats need to promise to impeach Justices when they regain power. It should be a litmus test for running. Start with Thomas. (Yes I know barring a miracle it is years before we gain a majority, let alone one that can pull off impeachment. Who cares, it sends a message.)
Sen. McConnell held up Garland’s nomination by invoking the mythical will of the people. The person who will nominate the next justice won’t have commanded even a plurality of the vote, let alone a majority as his predecessor did.
Senate Democrats just need to say that they’re following the McConnell Rule in denying a vote on anyone named by Trump. Easy for even the low information voters to understand, fits the template the popular media adopted in 2016, and shoves McConnell’s own rhetoric right up his poop chute. What’s not to like?
Love the simplicity of your idea — which means it probably will not happen.
Trump also had a solid firewall of Republican Senators standing with him, and they were a majority of the Senate.
Democrats are the minority party.
That is a much harder handicap to overcome.
So the idea of procedurally forcing Garland Merrick onto the court in the interim between the sessions has bitten the dust.
Will the Democratic caucus figure out how to fight asymmetrically? They have certainly underestimated McConnell’s ability for procedural strategy that plays inside and outside the chamber.
Schumer setting high expectations tells me that he’s got nothing but bluster.
Which gives me low expectations of the performance of the Democratic caucus this year. And unlike the Tea Party, there is no sugardaddy to fund an outside astroturf movement that will succeed in doing what the establishment Democrats want.
That was always contingent on the outcome of the election. At both the Presidential and senate level.
It’s not for want of a sugardaddy (several exist) but lack of a game plan that can succeed and afterwards be folded into the party. The courting of “moderate” Republicans in the time of Trump has been tried and it flopped.
“It seems to me that it would be better to set expectations accordingly even if this has the stench of defeatism.”
Could not possibly disagree more.