Democrats — at least some of them — are coming to the realization that if they’re going to fight the Trump administration effectively, they’ll have to play hardball. So Tuesday, Democrats in the Senate boycotted the committee votes on the nominations of Tom Price as secretary of health and human services and Steven Mnuchin as treasury secretary, saying both had misled the committees (about stock trades in Price’s case and home foreclosures in Mnuchin’s) and therefore that their confirmations should be delayed until they can be forced to answer more questions.
After Tuesday night, they’re going to be faced with an even more important question: Should they filibuster Donald Trump’s first Supreme Court nomination?
Yes, they should. They should do it to make a statement about the unconscionable way in which Republicans held this seat open, and about their willingness to be strong in the face of Republican bullying. And they need to realize that in taking this step, they have absolutely nothing to lose.
This evening, in a prime-time special I assume will feature dancers, celebrity guests and an inspiring performance by Three Doors Down, Trump is going to announce his pick for the Supreme Court seat that opened up nearly a year ago when Antonin Scalia died. According to multiple reports, Trump has narrowed his choices down to two appeals court judges, Neil Gorsuch and Thomas Hardiman. Both have the traditional qualifications one would expect in a Supreme Court nominee, and barring any shocking revelations, either is the kind of justice who in an earlier era would have been confirmed in a near-unanimous vote. But things have changed.
Filibusters of Supreme Court nominees are rare — the last one happened in 1968 — but this nomination constitutes the kind of unusual circumstance that demands an unusual response. When Scalia died last February, Republicans decided that they would refuse to allow a Democratic president to fill the seat, as the Constitution mandates. They gambled that while they would endure some criticism in the short term, eventually everyone would stop worrying about it, and they could just wait until they got a Republican president to allow a confirmation to proceed. Barack Obama nominated Merrick Garland, a candidate seemingly chosen to be as inoffensive to Republicans as possible: moderate, well-respected, the recipient of praise from Republicans in the past, and already 63 years old at the time. It made no difference.
Republicans made a power play because it was technically legal and they figured they could get away with it. The fact that their gamble paid off doesn’t make it any less reprehensible, and Democrats should take a simple stand: This seat was Barack Obama’s to fill, and Merrick Garland should be the one occupying it. This nomination is fruit of a poisoned tree, whether the nominee is a fine fellow or not.
And to repeat: They have nothing to lose. We can be honest and acknowledge that a filibuster won’t stop Trump’s nominee from getting to the court. We know what will happen if the Democrats go through with it. Republicans will express their outrage. Mitch McConnell will say that much as he regrets it, he has no choice but to call a vote to change Senate rules to forbid filibusters of Supreme Court nominees. That vote will succeed, and the nominee will then be confirmed on a party-line (or nearly so) vote.
Yet according to this report from CNN’s Manu Raju and Ted Barrett, some Senate Democrats are nervous about what the consequences of getting too tough might be. Some of them fear that filibustering now “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.”
That is just beyond ludicrous. What “leverage” will they have if they threaten to filibuster the next time a seat opens up? Will the threat force Trump to nominate a liberal? Of course not. As long as there’s a Republican majority, Trump will get his nominees confirmed, one way or another. Whenever Democrats choose to filibuster a Supreme Court nominee, Republicans will get rid of the filibuster. Waiting for another nomination doesn’t accomplish anything.
This seat was essentially stolen from Barack Obama. This is where Democrats need to make a stand, even if the outcome is all but inevitable. They have to demonstrate to the broader public that this seat should have been filled last year. And they need to show their constituents — the majority of Americans who voted against Donald Trump and want to see an opposition with some spine — that they’re willing to take a stand.
The truth is that the filibuster for Supreme Court nominees is going to be history one way or another. Either Republicans will eliminate it now, or they’ll eliminate it if Trump gets the chance to appoint another justice and Democrats filibuster that one, or the Democrats will eliminate it next time they control the White House and Republicans filibuster a nominee. Given that fact, this is the time to pull the trigger — when they have a real justification for it. Their voters are watching.