Donald Trump’s Tuesday night victory sets up an explosive Supreme Court battle in the Senate next year, one in which Democrats will be more motivated than ever to retaliate against Republicans, who in turn could permanently change a key rule in the upper chamber.
The chances of a radical change to Senate practice depend on just how hard Democrats are willing to fight against Trump’s nominees to the high court.
Incoming Democratic Leader Chuck Schumer, D-N.Y., appears poised to wage a pitched battle after Republicans refused to hold a hearing on President Obama’s nominee, Merrick Garland. This year, Trump first floated two names to fill the vacancy left by Antonin Scalia’s death: Bill Pryor Jr. and Diane Sykes, conservatives opposed to abortion and Democratic-backed voter rights.
He later released two additional lists of potential high court choices after working with the conservative Federalist Society and others on the right to develop them.
Months ago, Obama said it would be “inconceivable” that Senate Democrats would allow a Republican president and Senate to push through a high-court justice next year, after the GOP blocked his nomination this year.
Democrats said turn-about over Garland is only fair play, considering conservative Republicans even before the election were pledging to block the confirmation of any Clinton nominees to keep the Supreme Court at eight justices. It only takes one senator to try to stymie a high court nominee, and after Sen. Ted Cruz, R-Texas, and other Republicans suggested they might take that stop if Clinton won the White House, Democrats are more likely than ever to follow suit with Trump’s choices.
But if that happens, Republicans could decide to change Senate rules to allow the confirmation of a Supreme Court nominee with just a simple majority vote.
Senate Democrats already eliminated the filibuster option for the minority party for lower-court nominees and executive branch nominations, known as the “nuclear option,” when then-Majority Leader Harry Reid, D-Nev., deployed it in 2013. Ilya Shapiro, editor in chief of the Cato Institute’s Supreme Court Review, predicted Democrats would try to block Trump’s nominees, leaving Republicans little choice than to go thermo-nuclear and change the 60-vote threshold for high court nominees to a simple majority too.
