Democrats are in a state of high anxiety over the likelihood that departing Supreme Court Justice Anthony Kennedy will be replaced by a more conservative and much younger justice. And they ought to be.
Not that Republicans are in a commanding position. They have only a one-vote margin in the Senate, 50-49, assuming that John McCain (R-Ariz.) will be absent due to a brain tumor. But all the Republicans voted a year ago to confirm Justice Neil Gorsuch, and three Democrats joined them.
Democrats have only themselves to blame for the fact that just a simple majority will be required for confirmation. There used to be an opportunity to filibuster, but Democratic majority leader Harry Reid, who retired in 2017, changed that rule in 2013.
Democrats don’t appear to have any fresh ideas, at least for now, for derailing President Trump’s second nominee to the court. Trump has pledged to pick from a carefully selected list of more than 20 potential nominees, all of them judicial conservatives to one degree or another.
And their hardy perennial attack on GOP nominees may be too stale or even irrelevant, depending on the nominee. It’s to accuse the nominee of being wrong on social issues—that is, even slightly right of center.
House minority leader Nancy Pelosi has already voiced the familiar accusation, one that many Democrats ought to be able to recite by heart. “Make no mistake,” she said. “Republicans now have the opportunity to erase a generation of progress for women’s rights, LGBTQ rights, civil rights, workers’ rights, and health care.”
The Democrats’ refrain on social issues also aims to rile up the base with the claim that any conservative nominee would create a five-judge majority for overturning Roe v. Wade. But that claim has lost its punch. Leonard Leo of the Federalist Society told Fox News’s Stuart Varney that of the current justices, only Clarence Thomas is publicly in favor of tossing out the pro-abortion ruling.
Still another tactic is to try to peel off Senators Susan Collins of Maine and Lisa Murkowski of Alaska, both moderate Republicans, by emphasizing social issues. But that was tried in Gorsuch’s case and failed. Neither senator was a holdout who needed special wooing to vote for Gorsuch.
Social issues do have an impact on who is nominated. Republicans are fearful of picking a judge who has ruled against gay rights or abortion, even on marginal aspects of those issues. That would only add to the fierce opposition we’ll see in the confirmation hearings.
Democrats have raised a new demand: delay a confirmation vote until after the midterm election in November in hopes they can capture a Senate majority. Majority Leader Mitch McConnell said he will schedule the vote before the midterm, and he stuck by that in the days after Kennedy’s announcement.
To force their point, Democrats are circulating petitions. Senator Tim Kaine (D-Va.) asks people to sign this: “I am calling on Majority Leader Mitch McConnell to follow his own rule and not consider a Trump nominee until after November’s election.”
Democrats cite what they call the “stolen” justice of 2016. When Justice Antonin Scalia died in February of that year, McConnell announced there would be no vote on a successor until after the presidential election. Senator Pat Leahy and other Democrats are now citing a McConnell line from that year: “The American people should have a voice in the selection of the next Supreme Court justice,” meaning wait until after the midterm election.
At the time, Hillary Clinton was expected to win. But Trump won and is now basking in his power to create a high court dominated by five solid conservatives.
All sides, not just Democrats and Republicans but also unaffiliated liberal and conservative groups, are well organized for the coming confirmation fight. The conservative Judicial Crisis Network has already run an ad urging Democrats to vote for Trump’s nominee.
That’s not as much of a long-shot as one might think. Three red state Democratic senators—Joe Manchin of West Virginia, Heidi Heitkamp of North Dakota, and Joe Donnelly of Indiana—voted to confirm Gorsuch in 2017. All three are up for reelection this year, and voting against a conservative nominee just before November might be risky.
The White House has been evaluating a list of possible nominees for months. The top five of the list are federal appeals court judges:
Brett Kavanaugh, 53, of the D.C. Circuit Court of Appeals. He’s a favorite of many conservatives.
Amy Coney Barrett, 46, of the Seventh Circuit. She is a former professor at Notre Dame Law school.
Amul Thapar, 49, of the Sixth Circuit. He was one of four men interviewed by Trump last year when Gorsuch was chosen.
Thomas Hardiman, 52, of the Third Circuit. Trump’s sister is a senior judge on that court and is said to speak highly of Hardiman.
Raymond Kethledge, 51, also of the Sixth Circuit. Less known than the others in national judicial circles, he might be the dark horse.
Very likely, you’ll soon be hearing a lot more about one of these.
