Listen to Senator Jeff Merkley, D-Oregon, a leading voice among liberal Democrats, as he explains why he plans to filibuster President Trump’s nominee to the Supreme Court:
"This is a stolen seat. This is the first time a Senate majority has stolen a seat,” Merkley told reporters. “We will use every lever in our power to stop this.”
Merkley and other Democrats are still fuming over the successful strategy of Senate Republican Leader Mitch McConnell and his GOP Conference to deny President Obama his right to fill the for nearly a year after the death of Justice Antonin Scalia.
President Obama nominated Judge Merrick Garland to fill the seat. Top Republicans, acting solely out of political anger, blocked Garland's nomination for 10 months. That is the all-time record any Supreme Court nominee has had to wait for a hearing.
The GOP refused to schedule hearings, much less a vote on Garland. McConnell even rudely refused him a customary courtesy meeting.
They treated Garland with disrespect, bordering on a public shunning. Their goal was to prevent a non-Republican nominee from getting a seat on the high court and potentially conservative majority dominance of the nine-member bench.
Now with Trump in charge of nominating the next justice, the New York Times reported on the stakes this way: "A new justice appointed by President Trump would revitalize the court’s conservative bloc. The balance of power would then return to the one in place since 2006: leaning right, but tempered by the occasional liberal votes of Justice Anthony M. Kennedy."
Keep in mind – Garland was no extreme candidate. He is widely respected by conservatives and liberals. He is viewed as a middle-of-the road jurist who was eminently qualified and respected by his peers.
In fact, Garland’s unimpeachable credentials won him praise from Senate Republicans when he was nominated to the D.C. Court of the Appeals, regarded as the nation’s second highest court.
Back then, Sen. Hatch hailed Garland as “a fine man,” and “a consensus nominee.” He boldly predicted there would be "no question" that Garland would be confirmed if Obama nominated him for the vacancy that went to Elena Kagan in 2010.
So you can imagine Democrats' disgust when McConnell took to the Senate floor last week to warn them that Democrats must give "careful consideration followed by an up-or-down vote" to Trump's nominee, not a filibuster. Garland was never allowed to get to the point where anyone could filibuster.
Turnabout is fair play, acted on with glee in these politically polarized times. This is especially true after President Trump fired the acting Attorney General for refusing to defend the legal basis for his plan to halt acceptance of refugees and immigration from select countries. Lawyers for several states are already preparing to send challenges to Trump’s executive order to a future Supreme Court.
Just before the November election, when it looked like a Democrat might win the White House, Senators John McCain [R-Arizona] and Ted Cruz [R-Texas] said they might never consider a Democrat nominee for the Supreme Court and allow the court operate with 8 justices.
In this difficult, tit-for-tat atmosphere Senate Democratic Leader Chuck Schumer (D-NY) is prepared to lead his troops to the barricades against Trump's pick. Even before knowing the name of Trump’s nominee, Sen. Schumer focused his opposition on stopping a right-wing extremist from getting on the court.
"If the nominee is not bipartisan and mainstream we absolutely will keep the seat open," Schumer said in an interview last week. "I'm hopeful that maybe President Trump will nominate someone that will get bipartisan support —but, yes, we'll fight it tooth-and-nail as long as we have to."
Schumer's resolve on this point could force McConnell to invoke the so-called “Nuclear Option” that would destroy the filibuster as a means to block a Supreme Court nominee. It would lower the vote threshold in the Senate from 60 votes to 51 votes. The GOP has 52 senate seats. President Trump has said he would favor such a move.
Schumer's predecessor as Senate Minority Leader, Former Senator Harry Reid (D – NV), used the nuclear option for lower-level federal judicial appointments being blocked by Senate Republicans. But he was careful to avoid applying the simple majority rule to Supreme Court nominees. Sen. McConnell also seems to want to avoid that move which could lock the Senate in a state of dysfunction for years to come.
Supreme Court nomination fights are always marquee political fights, commanding tremendous media attention.
Think back to how President Reagan's nomination of Robert Bork to the Supreme Court was derailed. Think of the damaging political spectacle that occurred when Democrats tried to derail Justice Clarence Thomas’ nomination with salacious charges of sexual harassment.
It is possible that Democrats will decide it is smart politics to allow a “mainstream” Trump nominee to be approved this time. But if a liberal now sitting on the court retires or dies and Trump has another nomination, get ready for fireworks if not all out war on the nomination.
The polarizing politics of the Trump presidential brand coupled with the very real prospect that Democrats could use the filibuster make for a toxic combination.
The institutional norms of the Senate, political decorum and the public's fraying faith in government may just end up as collateral damage after the dust settles on a fight that will go on as long as Trump is in the White House.
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