Can the Democrats Get Tough and Save Us From Trump’s Supreme Court Nominees?

There need to be 60 votes in the Senate to confirm a Trump nominee to the U.S. Supreme Court. So the one place where Democrats can draw the line, to save us from the worst of Trump, is to reject any of his nominees, since at least eight Democratic votes are needed for approval.

The Democrats have almost no other leverage to stop or even slow Trump down. They are shut out by the GOP’s trifecta controlling the House, the Senate and the White House. And arguably Trump, who already has one nomination open for Judge Scalia’s former seat, may have two or three additional nominations over the next four years, given the age and health of some of the court’s members, particularly the liberals.

Given Trump’s list of prospective nominees, which include some of the most conservative jurists in the country, the court could be radically transformed for a generation. So much is at stake—Roe v. Wade, same-sex marriage, immigration, the future of unions, climate change, and literally dozens of rulings down the road. So a Trump court could make our country a very different place for decades, in some ways almost unrecognizable.

Because of a fateful decision by Harry Reid and the Senate Democrats to change the Senate filibuster rules on White House appointments so that cabinet and lower court nominations require only a simple majority, the GOP, with 52 Senate seats, is on track to approve every Trump cabinet nominee without a single Democrat’s vote. That is why the emerging rapid-fire confirmation process will be a circus, with opponents having little chance of affecting the outcome. Does anyone expect two or three Republicans to cross Trump and Senate Majority Leader Mitch McConnell in the first weeks of the new administration?  

Hypocrisy vs. hypocrisy

The strongest argument for the Democrats to hold firm on stifling Trump nominees is that the stakes are no less than the nation’s future—at least as seen by progressives, liberals and most Democrats—on questions of choice, human rights, economic rights and the health of the planet.  

Many are arguing that since McConnell and the GOP refused even to consider Merrick Garland, Obama’s nominee for Scalia’s seat; refused to act on more than 80 of Obama’s federal district court judges; and upped the ante by saying they would never allow a Hillary Clinton nominee to be considered by the GOP-controlled Senate, it is now time to play the game like the conservatives. But to do so, the Democrats would have to embrace the hypocrisy of changing their tune dramatically, from just a few months ago. Hypocrisy often has another side, when the tide changes or reality flips, as it has here.

The Democrats spent most of the past year attacking Senate Republicans for indefinitely blocking Garland and other judicial nominees. So blocking Trump nominees would be a big flip-flop, if that matters.

Much of this is up to the Senate’s new Democratic Minority leader, New York’s Chuck Schumer, who told MSNBC's Rachel Maddow, in an interview on her show last Tuesday night, “It’s hard for me to imagine a nominee that Donald Trump would choose that would get Republican support that we could support.”

Maddow said, “And so you will do your best to hold the seat open?”

Schumer replied, “Absolutely.”

The upside to Schumer and the Democrats taking a strong stand is that it could help rally a badly wounded Democratic Party. It would show that when big issues are at stake, Democrats are willing to play hardball just like their GOP counterparts.

This tough approach has not been characteristic of the Obama era. President Obama spent years attempting to prove that the Republicans are reasonable people, when in fact they are far from it, even closing down the government in their petty displays of ego and disdain.

One can imagine Schumer becoming an instant progressive hero, and getting huge media coverage, by standing strong on Trump nominees. And if Keith Ellison—who has the support of Schumer and Sen. Bernie Sanders—takes over the DNC, the Democrats could make stopping Trump on SCOTUS a major rallying cry.

So what is the downside? 

The risk of a Democratic flip-flop is that their position, blocking nominees, could be seen as obstructionist over time, especially in the face of Trump’s ability to boil things down to crass and cruel tweets that catch the imagination of some voters. While hardcore Democratic voters would stand firm, there would likely be erosion from moderate Democrats, especially in more conservative parts of the country.

As the Washington Post asked, “Could you imagine another few years of deadlocked or non-decisions [at the court]? That is objectively unsatisfying—and it's possible that Americans might start to care a lot more about how many justices are on the Supreme Court.”

“That would be really bad timing for Senate Democrats,” the Post continued. “They already have an absolutely terrible—possibly historically terrible—map in 2018. They're defending 10 seats in states Trump carried in November; half of those states Trump carried by double-digit margins. Meanwhile, Republicans have very few vulnerabilities. The last thing Senate Democrats need is a Supreme Court obstruction drama that voters actually care about.”

What will happen is anyone’s guess. For the present Schumer is standing tall. But what happens when there is a specific nominee—perhaps someone who isn't crazy conservative, or a Republican senator with some friends from across the aisle? That could alter the Democrats' political calculus. One can imagine the smear campaigns against many of those red-state Democrats running for re-election in 2018. When it comes to getting re-elected, most incumbents will run scared and cave pretty fast. It is not likely the Democrats will be able to put up a strong defense in those states where Trump performed so well.

In fact, if we were to look at the harsh reality of 2018, it is possible, should Trump not crash and burn, that the GOP could win a bunch of those races in red states and approach or surpass the 60-vote majority, whereby stopping Trump court nominees would be moot.

So, bottom line, the Democrats can legally and procedurally stop Trump’s high court nominees. But in the long run, it feels like a losing strategy. A likely scenario is that the Democrats may try to use their only leverage to get a nominee who isn’t so terrible. (After all, Obama’s Garland wasn’t close to being a great progressive pick.)

But if Trump plays it like he usually does and tries to push a true right-winger with racist values (like Jeff Sessions, his attorney general designate), then the Democrats will put up a fight for a while, maybe long enough to get a withdrawal and a new nominee. But in the end, the realities of politics will prevail and the Democrats will approve his nominee(s). Then things will get darker and far more depressing, sorry to say.