Democrats are lurching toward a fight over the next Supreme Court, wracked with bitterness about the 11-month blockade of an open seat but with no clear message on how to respond to the nominee expected from President-elect Donald Trump once he takes office.
Some are hoping for a surprise compromise. Some are girding for a fight. Some are speculating about their own blockade, with nervousness about the possible consequences.
The argument between Democrats, which has spilled onto TV since the election, gained new prominence when Senate Minority Leader Charles E. Schumer (D-N.Y.) appeared on Rachel Maddow’s MSNBC show.
“We are not going to settle on a Supreme Court nominee if they don’t appoint someone who is really good,” Schumer told Maddow on Tuesday night. “We’re going to oppose them tooth and nail. Now, then, they won’t have 60 votes to put in an out-of-the-mainstream nominee. Then they’ll have to make a choice, change the rules. It’s going to be hard for them to change the rules because there are a handful of Republicans who believe in the institution of the Senate and they don’t change the rules.”
A month earlier, Sen. Jeff Merkley (D-Ore.) had appeared on MSNBC to call the seat, opened by the February 2016 death of Antonin Scalia, “stolen.” Maddow pushed Schumer to find out how far he’d go in Merkley’s direction.
“Is there an argument to be made, though, if it is a fair statement that that was basically a stolen seat, so it isn’t theirs to fill, then in that case, no nominee would be legitimate because that seat should have been filled by President Obama?” Maddow asked.
“It’s hard for me to imagine a nominee that Donald Trump would choose that would get Republican support that we could support,” said Schumer.
“And so you will do your best to hold the seat open?” Maddow asked.
“Absolutely,” said Schumer.
Those comments made national news, but in conversations Wednesday morning, Senate Democrats didn’t echo their leader. Sen. Sherrod Brown (D-Ohio), who has said that the Republicans’ decision to deny hearings to nominee Merrick Garland should color how Democrats respond to Trump nominees, said he hoped that Trump would renominate Garland.
“I’m hopeful that Trump will do the right thing,” Brown said. “If he’s interested in healing the country and bringing people together, that would be a serious indication of purpose.”
Merkley did not see that as a possibility, and said that he favored the idea of a “talking filibuster” for an unacceptable nominee. But he was still working through how Democrats should respond to Trump’s pick. Asked whether he would deny a meeting with the nominee, as most Republicans denied meetings with Garland, Merkley said he would “cross that bridge when I come to it.”
Later that day, in his first news conference of the year, Senate Majority Leader Mitch McConnell (R-Ky.) brought up the Schumer comments even before reporters asked about them.
“Sen. Schumer announced yesterday that their goal was to apparently never fill the Supreme Court vacancy,” he said, slightly changing Schumer’s answer. “That’s kind of an expansion of the Biden rule. He recalled the Biden rule in 1992 was the Senate would not confirm a Supreme Court nominee in the middle of a presidential election year, which was my view last year. Sen. Schumer said in the second Bush administration that they would not confirm a Supreme Court nominee in the last 18 months of President Bush 43’s tenure. Apparently, there’s yet a new standard now which is to not confirm a Supreme Court nominee at all. I think that’s something the American people simply will not tolerate and will be looking forward to receiving a Supreme Court nomination and moving forward on it.”
McConnell’s statement recapitulated the arguments he had made in 2016, quoting the opposition of key Democrats to hypothetical Supreme Court nominees. (Schumer had made his remarks when Democrats held the Senate in 2007 and were worried that a liberal justice might die before George W. Bush left office.) But McConnell was strategically unclear on the next question — whether Republicans would change filibuster rules to end a blockade by the minority party.
“I’m not going to address what might happen in a context of a Supreme Court appointment,” McConnell spokesman Don Stewart said in an email. “What we do know is the new president will fill the vacancy and I expect it to be handled in the way these court appointments are typically handled.”
Democrats may soon face a similar predicament, and gamble, to the ones Republicans faced in 2016. Last year, the majority party contrasted the 100 percent reality of an appointment by Obama to the court with the 20 percent chance of a Trump victory. It could have led to disaster — but it didn’t, with Trump eking out an electoral college victory despite a loss in the popular vote.
Democrats, who face incredibly steep odds at taking control of the Senate in 2018, may face several gambles. If a Trump nominee for the open seat were filibustered, and Republicans responded by ending the filibuster on Supreme Court nominees, the Democrats would face the next three years with no tools for preventing a vote on a vacancy that could swing the court. The departure of Ruth Bader Ginsburg or Anthony M. Kennedy, the oldest justices, would give Republicans a chance to replace, respectively, a liberal vote or a swing vote with a conservative.
In 2016, Republicans cobbled together a rationale for why a seat held by a conservative should not be filled until after an election. In 2018, 2019 or 2020, Democrats might well face the same political quandary, needing a rationale to hold a liberal seat open until a new election. And in 2016, while a Democratic victory would have led to a liberal court majority for the first time in the lives of many Americans, it was Republicans who motivated their base on the issue. According to the 2016 exit poll, just 21 percent of voters said that the Supreme Court’s future was determinative in deciding their votes; by a 15-point margin, they broke for Trump over Hillary Clinton.