Hi All,
Welcome to the ninth installment of Not 4 Nothin! I’m sorry it’s been so long between posts, but the past few rounds of primaries have been keeping me insanely busy. Today I want to discuss Justice Kennedy’s retirement from the Supreme Court, and the possible political ramifications of the confirmation battle over his successor.
First and foremost, I have to believe (and I truly hope) that Kennedy thought long and hard about this decision before making it. Justices tend to hold their legacies in high regard, so I believe that Kennedy legitimately believes that a Trump-nominated successor will be better for his legacy than a potential post-2020 Democratic nominee would have been.
Let’s not forget that Kennedy is a conservative. He was appointed by Ronald Reagan, and has been a reliable vote for the conservative wing on many issues. Remember, Kennedy wrote the majority opinion in Citizens United – which I personally consider to be one of the most dangerous rulings ever issued by the Court.
Almost immediately after Kennedy announced his retirement, the battle lines were drawn over the pending confirmation of Kennedy’s successor. Chuck Schumer and the Democrats were quick to remind everyone that Republicans refused to even consider Obama’s choice of Merrick Garland in 2016 because it was an election year. Democrats are saying that the same precedent should apply here, and that considering a nominee before the Midterms would be hypocritical. McConnell is saying that a presidential election year and a congressional election year are two different things, so his own election year stance from 2016 will not apply here.
Either way, Republicans still control the Senate, so it doesn’t really matter what Chuck Schumer thinks. And, let’s face it, painting Republicans as hypocritical is a charge that Democrats have never been able to take advantage of and turn into votes. The odds are, Trump will nominate someone within a month, and the Republicans will try to get him or her confirmed before the election.
As much as I hate to admit it, that’s the way things are supposed to work. McConnell was wrong to hold off on considering Merrick Garland in 2016, and Schumer would be wrong for arguing to do the same thing in 2016. “He started it” is not a good excuse for continuing to break with centuries of constitutional norms. And, as my mother used to tell me when I would try to use the same logic to try to justify fighting with my brother, “yes, but you finished it.”
Beyond all of my soapbox idealism when it comes to the Supreme Court, arguing against consideration of the next Trump nominee would be very bad politics for two main reasons.
Reason 1: Republicans Are in the Majority
The reason McConnell’s gamble was successful in 2016 is that Republicans were in the majority. This meant they controlled the Senate Judiciary Committee – and therefore controlled the entire confirmation process. The committee chair (in this case Chuck Grassley) gets to set the schedule for the committee, and can decide when to not hold hearings. Grassley is still the chairman, which means he can schedule hearings whenever he wants. He is already on record saying that he wants to confirm the new Justice before the Midterms in November.
Make no mistake about it, whoever Trump nominates will be considered. There will be hearings on his/her confirmation, there will be a committee vote, and then there will be a vote in the full Senate. All of this can (and will) happen without Democrats being involved in the process at all – that is a fact.
So, for Democrats to sit there and complain that this nominee should not be considered because of the McConnell rule will open them up to the charge of being whiny obstructionists – and you better believe Trump will highlight this at every opportunity. I am not saying that the Democrats need to support this nominee, but he/she is going to be considered by the Senate, so why bother wasting political capital in an effort to stop that.
Additionally, if Democrats waste time complaining about the process of how this nominee is being considered, it will be harder to make the argument against confirming the specific nominee that Trump selects – it will look like they are just being sore losers, as opposed to having legitimate concerns with whoever the nominee is. That is what happened with Gorsuch’s confirmation, Democrats wasted so much time bemoaning the process that they never were able to make their real concerns about him known.
Reason 2: The Republican Majority Will Likely Be Larger After The Midterms
For all the talk of a Blue Wave sweeping the House in November, the Senate map is looking worse and worse for Democrats. They are defending seats in 10 states that Trump won by large margins including Missouri (Trump +18.7%), Montana (Trump +20.5%), Indiana (Trump +18.9%), and West Virginia (Trump +42.1%).
Though they may win some of these races, it is unlikely that Democrats hang on to all 10. Plus, with only 3 decent pickup opportunities in Nevada, Arizona, and Tennessee, there just aren’t enough races that will make up for Democrat losses in Trump states. In the end, it is likely that the Midterms will lead to a larger Republican majority in the Senate (which is why Democrats taking the House is so important!).
This larger majority will allow Republicans much more leeway when it comes to confirming a new Supreme Court Justice, as they will be able to withstand more “nays” from their own caucus while still confirming the nominee. As it stands right now, Republicans have a 51-49 majority in the Senate – though it’s really 50-49 while John McCain is still absent as he battles cancer.
This means that Democrats only need two Republicans to oppose the nominee to tank the confirmation. Senators Collins and Murkowski (who bucked the Republican Leadership in 2017 by helping to save Obamacare) are on record as being more pro-choice than the rest of the Republicans in the Senate.
Since most of Kennedy’s more liberal opinions came in abortion cases, the new Justice will play a crucial role in either defending or dismantling Roe v. Wade. Having Murkowski and Collins refuse to confirm an unflinchingly anti-abortion nominee looks like it’ll be Democrats’ best chance to avoid Kennedy’s seat falling into hyper-conservative hands.
But, if the Republican majority grows to five or six seats, then it won’t really matter how Murkowski and Collins vote. In fact, if current political trends and polling hold, it could end up helping McConnell to wait to confirm a new Justice until January 2019.
I definitely understand the Democrats’ argument that they cannot simply roll over on this nomination – especially after the Republicans stole the Garland nomination away from President Obama. But, sheer hatred of Trump cannot be the only driving factor behind their political strategy here. If we are blind to the political reality at play here it will be bad for the Court, bad for Roe v. Wade, and bad for the country.
Making smart political moves here is more important than just opposing Trump and opposing Republicans. Democrats need to play the hand they have been dealt, and they run the risk of turning off independents by obstructing the nomination process while also likely allowing Trump’s pick to be confirmed.
The smarter move here is trying to peel away two Republican votes and handing Trump a crushing defeat in the Senate right before the Midterms.The question is – will Democrats stop for a moment to analyze the political reality? Or will they let themselves be blinded by their disgust over Trump which could lead them into making a horrible mistake?
Like I said at the beginning, I am sorry for the delay since my last post. Things look like they will be calming down a little over the next couple of weeks before picking up again, so I hope to be able to come out with new posts on a more regular basis during July.
As always, please feel free to send questions/comments/concerns/email addresses of new readers to NotFourNothin@gmail.com!
Thanks,
Tyler
Not 4 Nothin 