Justice Anthony M. Kennedy’s retirement from the Supreme Court this week opens the door for conservatives to solidify their 5-to-4 majority on the court. It also means that the prospect of liberal 85-year-old Justice Ruth Bader Ginsburg’s exit — and the possibility of a 6-to-3 conservative court — looms even larger over the remainder of Donald Trump’s presidency.
And while Democrats might not have been able to prevent any of it, they certainly helped grease the skids. Circumstances, perhaps ones Democrats could and should have guarded against, have conspired to make their maneuvering look increasingly bad. And for liberals who are understandably furious about the whole mess, there should be enough blame to go around.
Here’s a quick refresher.
In 2013, while facing a controversial blockade of President Barack Obama’s judicial nominees by filibustering GOP senators, then-Senate Majority Leader Harry M. Reid (D-Nev.) decided to go “nuclear.” He effectively eliminated the 60-vote threshold for non-Supreme Court nominees, thereby allowing Democrats to confirm Obama’s nominees with a simple majority.
Then the GOP won the Senate in 2014. With their majority, Republicans forged another, unprecedented election-year blockade of Obama’s pick of Merrick Garland to succeed the late Supreme Court Justice Antonin Scalia. Then, in 2016, Trump won the presidency.
Trump nominated Gorsuch, a young, controversy-free conservative judge who seemed to be out of Central Casting. He was the kind of nominee who has generally sailed to confirmation — and, in fact, was unanimously confirmed by voice vote to an appeals court position in 2006.
Gorsuch also would not technically have shifted the court to the right, given that Scalia had anchored the court's conservative flank for decades. But Democrats were upset. They were perhaps quite understandably sore about the GOP’s bogus justifications for blocking Garland and about Trump’s shockingly winning the presidency despite losing the popular vote. Strategy gave way to the emotion of the moment, and they gave their base the filibuster it demanded.
They filibustered even though it seemed obvious that Republicans would just invoke the nuclear option for Supreme Court nominees, as Reid had for other nominees. They filibustered knowing it was almost certainly an exercise in futility. And they filibustered knowing it would probably take the filibuster off the table for a situation just such as this: when the balance of the court actually is at stake.
I wrote at the time about the wisdom of that decision — or potential lack thereof:
Put plainly: Democrats don’t have much of a hand in Washington right now, and going hard at Gorsuch risks overplaying it.
The problem Democrats have is twofold: 1) They are incensed that Republicans managed to avoid even holding hearings for President Obama’s nominee for the same seat, Merrick Garland, last year, and 2) They have a base just itching for a fight with Trump . . .
But the emotional and immediate temptation isn't always the more prudent political one.
Today, Republicans have 51 votes in the Senate — but practically speaking, their majority is 50 to 49, with Sen. John McCain (R-Ariz.) battling brain cancer. And that’s exactly the number of votes needed to confirm Kennedy's replacement. If they keep their majority and Ginsburg retires anytime soon, they’ll need just 50 votes to create a 2-to-1 conservative majority on the court.
This is the point at which some liberals and Democrats are throwing things at their computer screens. Republicans just would have gone nuclear anyway, they'll say. McConnell showed no qualms about brazen political gamesmanship with Garland, so why would he suddenly have an attack of conscience with the Kennedy vacancy? That’s fair.
First, I would say that, given the events of 2015 and 2016, it’s very likely that McConnell and the GOP would have tried to go nuclear to fill Kennedy’s vacancy. The seat is of such importance that they could justify just about anything to themselves. And McConnell hasn’t exactly demonstrated that he’ll hold back.
But also consider this: They have no votes to spare. They had a 52-to-48 majority when they confirmed Gorsuch last year, but then they lost the Alabama special election, and it dropped to 51 to 49. They all voted to go nuclear last year, but it might have been a more difficult vote for any of them with a nominee who would actually shift the balance of the court.
It might have been a tougher choice, for example, for someone like Sen. Susan Collins (R-Maine). She’s a pro-abortion rights moderate who has now expressed concern that Kennedy’s replacement might help overturn or chip away at Roe v. Wade. She also bemoaned the need to go nuclear last year, justifying it by saying that Democrats abused the “extraordinary circumstances standard” for using the filibuster. We can’t say for certain how it might have turned out, but someone like Collins or her pro-abortion rights GOP colleague Sen. Lisa Murkowski (Alaska) might have had a tougher time justifying themselves in this case than in the Gorsuch case. Perhaps this would be “extraordinary circumstances.”
And, secondly, even if you set aside the machinations since the Garland blockade, we still have the 2013 nuclear option. That set all of this in motion, and it was Democrats. They will argue that the GOP forced their hand with an unprecedented obstruction of Obama’s nominees, but they chose to light this fuse in the name of getting lower-court judges confirmed.
And even some of their own have admitted to some buyer’s remorse.
“I do regret that,” Sen. Christopher A. Coons (D-Del.) said after Trump won in late 2016. “I frankly think many of us will regret that in this Congress because it would have been a terrific speed bump, potential emergency break, to have in our system to slow down nominees.”
Joining Coons in that view is the man who now presides over his party’s weakened hand, Senate Minority Leader Charles E. Schumer (D-N.Y.).
“I argued against it at the time,” Schumer told CNN last year. “I said both for Supreme Court and in Cabinet should be 60 because on such important positions there should be some degree of bipartisanship.”
Schumer added: “Wish it hadn’t happened.”
Of course, just as the nuclear option and the Gorsuch filibuster may have been shortsighted, so, too, might we be in this very moment. Even with Kennedy’s replacement likely to shift the court rightward, we don’t know which vacancies will come up when or who will be president in 2021. It could just as well be that the nuclear option may help a Democratic president shift the court back to the left in the next decade (or beyond). It could even be that Democrats exit the 2018 election with a Senate majority that could block any Ginsburg replacement, though that will be tough.
But at least for the moment, this has worked to Democrats’ detriment. And if the court’s conservative majority grows or even just persists for years or decades, this decision will age poorly.
There is a ton of anger and righteous indignation over McConnell’s Garland gamesmanship right now, and it’s tempting for Democrats to blame everything on that. But that’s only part of the story.