The battle over a stolen SCOTUS seat begins today

Today’s the day: Donald Trump Supreme Court choice announcement coming Tuesday 8 p.m. ET.

Paul Waldman at the Washington Post reports:

Burgess Everett (Politico) reports that Democrats look like they’re ready to pull the trigger on a filibuster of Trump’s Supreme Court nominee:

Senate Democrats are going to try to bring down President Donald Trump’s Supreme Court pick no matter who the president chooses to fill the current vacancy.

With Trump prepared to announce his nominee on Tuesday evening, Sen. Jeff Merkley (D-Ore.) said in an interview on Monday morning that he will filibuster any pick that is not Merrick Garland and that the vast majority of his caucus will oppose Trump’s nomination. That means Trump’s nominee will need 60 votes to be confirmed by the Senate.

“This is a stolen seat. This is the first time a Senate majority has stolen a seat,” Merkley said in an interview. “We will use every lever in our power to stop this.”

It’s a move that will prompt a massive partisan battle over Trump’s nominee and could lead to an unraveling of the Senate rules if Merkley is able to get 41 Democrats to join him in a filibuster. Sen. Amy Klobuchar (D-Minn.) also reminded her Twitter followers on Sunday night that Supreme Court nominees can still be blocked by the Senate minority, unlike all other executive and judicial nominees.

Look for this to become a litmus test for Democrats looking for higher office.

CNN is reporting that some Democrats consider backing off big battle over Trump’s Supreme Court pick:

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. Frustrated Republicans press McConnell to kill the filibuster.

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.

Preserving the filibuster now could give Democrats more leverage in the future, proponents of this strategy say. But it would enrage the Democratic base that wants a furious Democratic response to Trump’s court pick.

Sen. Chris Coons, D-Delaware, a member of the Judiciary Committee told CNN he is still seething over the Republicans’ decision to block Judge Merrick Garland from filling the seat when they refused to hold hearings and votes on his nomination last year.

“But I’m not going to do to President Trump’s nominee what the Republicans in the Senate did to President Obama’s,” Coons said. “I will push for a hearing and I will push for a vote.”

Other Democrats privately agreed with that sentiment.

Democrats are divided sharply on the question, which was a heavy focus of their legislative retreat in West Virginia last week and will be a top topic at their weekly policy lunch in the Capitol Tuesday.

Some liberals argue they should battle anyone who is nominated in retribution for the Republicans’ handling of Garland, President Barack Obama’s pick for the seat left vacant after the death of Justice Antonin Scalia almost a year ago.

Some of those Democrats believe they could block a nominee for up to a year, keeping the court divided 4-4 along ideological lines in the meantime.

Vocal pressure from liberal voters could complicate any move to delay a Supreme Court fight.

“I support 60 votes,” said Judiciary Committee member Sen. Amy Klobuchar, D-Minnesota, while acknowledging she doesn’t know who will get tapped for the post. “Sixty votes is in the Senate rules and that is how we’ve done it and that’s how we should do it.”

But such a move is highly risky and could trigger a harsh response from the GOP.

Republicans could retaliate by using the so-called “nuclear option” to lower the threshold to break a filibuster of a Supreme Court pick from 60 to 51 and easily fill this vacancy and others to come. In 2013, Democrats used the nuclear option over the objection of Republicans when they lowered the threshold to break filibusters for executive branch appointments and all other judicial nominations except the Supreme Court.

Yet some Democrats who oppose putting off a fight on Trump’s first Supreme Court nominee argue Republicans might not have the 51 votes they would need to approve the rules change, as some senior GOP senators may be reluctant to erode the effectiveness of the 60 vote filibuster, which famously preserves the power of the Senate minority.

Majority Leader Mitch McConnell, R-Kentucky, who opposed the Democrats’ nuclear option, nevertheless has kept the option open for the Supreme Court. If Democrats were to successfully filibuster a Trump justice, the pressure from the right on McConnell could grow immensely.

Yes, Mitch McConnell, the senator who has most used and abused the Senate’s filibuster rules in the history of the Senate when he was Minority Leader, is open to getting rid of the filibuster if it gets him what he wants now.

In an early salvo on the issue, Democrat Sen. Jeff Merkley of Oregon, told Politico Monday he would filibuster virtually anyone Trump’s selects for the court.

“This is a stolen seat. This is the first time a Senate majority has stolen a seat,” Merkley said. “We will use every lever in our power to stop this.”

One senior Democratic aide said Merkley’ s announcement was expected and that just because he launches a filibuster, it doesn’t mean he would have enough Democratic votes to support it especially if Democratic leaders decide it’s smarter to save the fight for a future vacancy. Moreover, some moderate Democrats up for reelection in 2018 in states Trump won overwhelmingly could presumably break ranks and help the president get his pick confirmed.

Liberal firebrand Sen. Sherrod Brown, D-Ohio, said he wants to wait and see who the nominee is before deciding on a filibuster. Asked about Merkley’s support for a filibuster, Brown replied, “that’s his decision.”

The decision for Democrats depends partly on who Trump names. If he picks a conservative that Democrats consider “mainstream” — such as Appeals Court Judge Neil Gorsuch — Democrats could hold off on a fight, according to the aides. But if he picks someone they consider outside the mainstream — such as Appeals Court Judge William Pryor — a major battle could ensue.

I would agree with this final analysis: wait to see whom the nominee is and examine his or her record with a fine-toothed comb before deciding whether or not to wage a battle over the “nuclear option” for Supreme Court Justices. Democrats need to be certain that there are enough GOP defectors to preserve the current Senate filibuster rules.

As Rick Hasen has pointed out, Democrats can work their remaining levers of power to protest President Trump’s policies and power. Even without a filibuster for nominations, Senate Democrats can withhold unanimous consent, demand 30 hours of debate per nomination, etc. Give the Tea-Publicans a taste of their own medicine from the past eight years: delay and obstruct. What goes around comes around.

5 Responses to The battle over a stolen SCOTUS seat begins today

  1. This isn’t the “Scalia seat” we are talking about, it’s the “Garland seat”!

    The Senate Democrats are calling for exactly what they called for in the Garland non-confirmation—hold hearings and have votes.

    • You know, Bill? I won’t even argue the point with you because I understand completely why you say that. The Republicans took a long chance that Trump was going to win, and it paid off for them. Normally they are not that bold, but they held sway on this and kept their eyes on the prize. And they won. That’s politics for you…

      • Is that where we should be heading? Toward a future where politics and ideology are primary, and governance a mere afterthought?

        I mean, if that’s the world we’re in now, and it seems like we might be, then the Democrats in the Senate would be wise to go absolute scorched-earth. Demand every bill be read in full, filibuster everything, including naming post offices. Bring any legislation and changes Trump wants to pass to a complete standstill, and then pin it all the failures on Trump, since most of the public thinks the President runs the show and has a lot more power than he really does.

        I mean, that’s what McConnell & Co. did the last eight years. Perhaps we need some hyperpartisanship from the other side now.

        • “Toward a future where politics and ideology are primary, and governance a mere afterthought?”

          To be honest, I have always viewed democrats as working that way. To win and to hold the power is the foremost goal of democrats. And when they won and had the power they pretty much did what they wanted to do. To them governance and ideology are intertwined; the governance is used to further the ideology. That is why they are so desperate now that they lost the White House, the Senate, and the House. The power is gone and with it, their ability to push their politics and ideology.

          “…then the Democrats in the Senate would be wise to go absolute scorched-earth.”

          That would be dumb of them because, as these things always do, the pendulum will swing and they will one day be in charge again and having to face an adversary prepared to go “scorched earth” against them. That is the art of politics.

          “…and then pin it all the failures on Trump, since most of the public thinks the President runs the show and has a lot more power than he really does.”

          No, that won’t happen. Do you remember when the Republicans used their power to shut down the Government? The people knew who was responsible. If the democrats did what you want them to do, it would obvious where the problem was and they would pay a price for it. They know that which is why you won’t see them do that.

          “I mean, that’s what McConnell & Co. did the last eight years.”

          Oh please…the Republicans did not do that. The biggest evidence of that: Obamacare. It passed and if the Republicans had been blocking everything, it would not have.

  2. I fully expect the democrats to fight tooth and nail over the Supreme Court nominees. The Courts are, and always have been, the bastions of power where democrats are concerned. Of course, they are fighting the inevitable. That’s what happens when you lose elections.