On Supreme Court, ‘He hit me first’ is not a sound way to govern
A Donald Trump presidency provides an endless list of things to worry about, but somewhere near the top should be the potential that he overhauls the U.S. Supreme Court with as many as four stridently ideological justices. That’s a legacy that could last for decades after he’s gone.
So Democrats should block any Trump nominee, right?
Wrong. As President Obama famously said, “elections have consequences.” Trump won, so he gets to fill any Supreme Court openings, with the Senate’s advice and consent. And Republicans won the Senate.
Sen. Chuck Schumer, the leading Senate Democrat, vowed that Democrats would block almost any Trump nominee to the court. Asked this month by MSNBC’s Rachel Maddow if he would do all he could to keep the late Antonin Scalia’s seat open, he said, “Absolutely.”
“We are not going to settle on a Supreme Court nominee. If they don’t appoint someone who’s really good, we’re gonna oppose him tooth and nail,” Schumer said.
That would be sweet revenge against Republicans who, in an unprecedented and shameful move, ignored their constitutional role by refusing to hold hearings for Obama’s nominee to the court, Merrick Garland. Few argued that Garland was unqualified to take Scalia’s seat; Republicans just pulled a power move and blocked him until the clock ran out. Now Democrats see their chance to get even. But “he hit me first” is not a productive governing philosophy.
Trump said this month that he will nominate a justice to replace Scalia within two weeks of his inauguration Friday. Democrats are considering filibustering any nominee. Republicans would then be forced to find 60 votes to even take a vote on the nominee. At that point, Republicans would be likely to invoke what’s known as “the nuclear option” – changing the rules so that only 51 votes are needed to end debate.
So with or without a filibuster, an up-or-down vote is likely. Then let the chips fall where they may. If the 48 Democrats are united against Trump’s nominee, they would need only three Republicans to break ranks. Sens. Susan Collins, R-Maine, and Lisa Murkowski, R-Alaska, could oppose a strident pro-life nominee, meaning opponents would need only one other Republican to defeat Trump’s pick.
This is how the Founders expected the process to work: The president nominates, the Senate debates and votes. It’s called checks and balances, and Republicans’ disgraceful failure to exercise it with Garland’s nomination doesn’t mean Democrats should lower themselves to that level now. Besides, the court needs nine members, not its current eight, to fully do its job.
Replacing Scalia with a conservative will not alter the court’s make-up in any case. It is later nominations – to replace a departed Ruth Ginsburg, Steven Breyer or Anthony Kennedy – that would be truly consequential. Democrats might want to not burn bridges now to the few moderate Republicans they’ll really need then.
This story was originally published January 17, 2017 at 6:24 PM with the headline "On Supreme Court, ‘He hit me first’ is not a sound way to govern."