Kennedy is no ordinary justice, and President Trump is no ordinary president. If there are any Republicans who take their oaths seriously, they must insist on a judicial ingrate — a judge who will accept a nomination and then stand up to Trump if he, for example, tries to pardon himself or to defy a subpoena. They must insist upon a justice who has not publicly foreclosed his views on subjects or shows excess deference to the executive branch.
Senate Minority Leader Charles E. Schumer (D-N.Y.) said on the floor Wednesday, “Our Republican colleagues in the Senate should follow the rule they set in 2016, not to consider a Supreme Court nominee in an election year. Senator McConnell would tell anyone who listened that the Senate had the right to advise and consent, and that was every bit as important as the president’s right to nominate. Millions of people are just months away from determining the senators who should vote to confirm or reject the president’s nominee, and their voices deserve to be heard now, as Leader McConnell thought they deserved to be heard then. Anything but that would be the absolute height of hypocrisy.” Fat chance that is going to happen. The Republicans are not constrained by norms, precedent or vague appeals to fair play.
Democrats are now pondering what can be done to thwart appointment of a right-wing justice who will eradicate decades of jurisprudence. Not much, although senators and progressives are vowing to play “hardball” or “go to the mat” or something. There are certain delaying tactics senators could take, and while those tactics only slow down the process but do not stop it, there are myriad things that can happen between now and the time a new Congress is sworn in. Special counsel Robert S. Mueller III may release a report that suggests grounds for impeachment and/or indictment, thereby calling into grave question the legitimacy of a Trump nominee. Senators may vacate their seats for health or other reasons. In short, senators could take as much time as humanly possible both to fully vet nominees and to head off election-eve votes.
Beyond that, however, Democrats need a single GOP vote to flip and to hold onto every one of their members, provided Sen. John McCain (R-Ariz.) does not return. The most likely Republicans to lure to their side are Sens. Susan Collins (R-Maine) and Lisa Murkowski (R-Alaska) who both support abortion rights and voted against a GOP health-care bill that would have unwound Obamacare. Democrats in quiet conversations, ads, rallies, demonstrations and every other means possible will try to convince them that a vote to confirm Kennedy’s replacement is a vote to criminalize abortion, to be blunt. (More accurately, it is a vote for a justice who in all likelihood will not support abortion rights, thereby allowing states to restrict and deny abortion.) Their votes for previous justices didn’t matter because, as we noted, the swing vote was not at issue. Now it is, and their votes to confirm a judge clearly disposed to limiting rights to abortion (or contraception, for that matter) will be their legacy. Maybe they will be immune to such arguments; perhaps they simply aren’t willing to go out on a limb, but if Democrats have any hope of stopping the train it will need to involve one or both of these senators.
If Democrats are serious, they’ll need to threaten boycotts (akin to those against North Carolina over the “bathroom bill” and Arizona on immigration) of those states if their senators vote to put an anti-Roe judge on the court. It’ll be a full-court press — donors, business, activists, local politicians. It might not work — it probably won’t work — but it will surely engage their base.
Beyond those two, retiring Sens. Jeff Flake (R-Ariz.) and Bob Corker (R-Tenn.) have the ability to ensure only a judge of the highest character, experience and institutional loyalty (to the judiciary) is selected. Any hint of cronyism or winks and nods between Trump (or his indicted campaign colleagues) should bring the process to a screeching halt. A nominee to be confirmed must assure the Senate that U.S. v. Nixon, which ordered the president to respond to a subpoena was rightly decided. If the nominee refuses to say or suggests the unanimous decision was wrongly decided that should be grounds for rejecting a nominee.
In sum, Democrats’ best chances rest in delaying the process (and waiting for lightning to strike) and imploring the two pro-abortion-rights Republican women not to criminalize abortion. Democrats could always get lucky; Trump could send up an obviously unfit candidate, making it easy for Democrats to hold the line and for queasy Republicans to force a post-election vote. Beyond that, there simply isn’t much they can do. Thanks to the Russians, former FBI director James B. Comey and fewer than 80,000 voters in three key states, the fabric of American life could be radically altered.