President Donald Trump is set to announce his pick for the U.S. Supreme Court Tuesday night. When he makes the decision, Senate Democrats will face a difficult but important choice.
Fight the pick, or give in?
Most Democrats want to fight. They remain justifiably angry at Republicans for blocking then-President Barack Obama’s nominee for the high court’s ninth seat. Sen. Mitch McConnell and his GOP colleagues robbed Obama of a nomination, and Democrats think the party should take it back.
“This is a stolen seat,” Sen. Jeff Merkley, an Oregon Democrat, told Politico Monday. “We will use every lever in our power to stop this.”
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The temptation to give Republicans a taste of their own medicine is strong but dangerous. A do-or-die fight over Trump’s first nominee could backfire disastrously.
Senate Democrats hold only one real weapon: the filibuster. It will take 60 votes to move Trump’s nomination, and Republicans have only 52. Monday, the Democrats’ Senate leadership said they won’t provide the other eight votes.
But McConnell has already signaled his intention to push the nomination through. He seems willing to demolish the filibuster for Supreme Court picks, a move that outsiders are already calling a “nuclear option.”
It would be bad for Democrats to lose a fight over Trump’s first Supreme Court nominee. It would be a calamity to lose that fight and lose the filibuster at the same time.
Trump’s pick will undoubtedly be conservative, but he or she won’t change the ideological makeup of the court. The nominee is replacing the late Antonin Scalia, who anchored the Supreme Court’s right wing. Replacing a conservative with a conservative won’t change the outcome of most cases.
The real fight should be over the next nominee — the replacement, perhaps, for liberal justices Ruth Bader Ginsburg, 83, or Stephen Breyer, 78. Replacing either with a conservative justice would tilt the Supreme Court to the right for a generation or more.
Justice Anthony Kennedy, a swing vote in many cases, is 80. A conservative justice in his seat would change the court and the country.
The only tool Democrats would have to fight those changes would be the filibuster.
Democrats might risk blowing up the filibuster this time in order to oppose a particularly bad nominee. William Pryor, who now sits as a federal appeals court judge, is particularly odious. If Trump picks him, an all-out fight might be the only possible response.
And they may be betting McConnell won’t carry through on a threat to blow up the filibuster. I wouldn’t take that bet.
Moreover, Democrats in red states need to pick their battles carefully. Sen. Claire McCaskill is up for re-election in 2018 and may not want to undertake a battle her party will likely lose. Unless the nominee is fundamentally unacceptable, McCaskill can find a better place to make a stand.
Absent a reprehensible pick, Democrats have no choice other than to offer token opposition this time and save the filibuster for later. Activists and liberals won’t like it, but it may be the best the minority party can do.