For the past week, public attention has been focused predominantly on President Trump’s attack on Obama administration policies, longstanding political norms, and all actors who have demonstrated a desire to push back against “alternative facts,” a term that will supplant “enhanced interrogation techniques” as the most obscene euphemism in 21st-century American politics. But on Tuesday evening, the Tweeter-in-Chief will be announcing an appointment that, in all likelihood, will outlast his administration: the prospective ninth justice on the Supreme Court. Given the stakes, as well as the circumstances that have caused the seat to remain vacant for nearly a year after Justice Antonin Scalia’s death, the strategy deployed by Senate Democrats will be scrutinized especially closely.
By most accounts, the nominee will be either Judge Neil Gorsuch, of the Tenth Circuit Court of Appeals, or Judge Thomas Hardiman of the Third Circuit. (The invaluable SCOTUSBlog has detailed analyses of Gorsuch and Hardiman, with respect to both their biographies and their track records on the bench.) Both are young (49 and 51, respectively), have solid conservative records, and are highly regarded by their peers. Gorsuch draws comparisons to Scalia because of their shared commitment to originalism and reputation for clear and vivid writing, while SCOTUSBlog’s Amy Howe expects Hardiman’s jurisprudence to resemble Justice Samuel Alito’s, as does a recent study attempting to estimate the “Scalia-ness” of potential Trump nominees. (That study estimated, based on three quantitative indicators measuring potential nominees’ similarity to Scalia in interpretive methodology and propensity to write separately, that both Gorsuch and the Eleventh Circuit’s William Pryor more closely resemble Scalia than does Hardiman.) Competing analyses, however, place Hardiman in between Justice Anthony Kennedy and Chief Justice John Roberts with respect to ideology.
These nominees are about as good as progressives could expect a Republican president to propose, given the presence of a Republican-majority Senate. Under normal circumstances, either nominee would be confirmed with minimal delay and half-hearted opposition. But under normal circumstances, there would be no vacancy for Trump to fill.
So how should Senate Democrats respond? Treating the nomination as business as usual would demonstrate that violating longstanding norms concerning Supreme Court nominations has no political consequences, and thus would legitimize the Republican obstruction of 2016. Moreover, it would demoralize the party’s base, which is spoiling for any opportunity to do unto Republicans what they had done to Obama over the previous six years. But successful obstruction of Gorsuch or Hardiman hardly guarantees that the next choice will be more acceptable, and unless you can credibly commit to obstruction of indefinite length, the Senate will probably end up confirming someone worse for you than the original nominee. (If you can make this commitment but fear the political repercussions, think about what constitutional law would have been had Robert Bork been seated instead of Anthony Kennedy.) Whichever strategic choice Senate Democrats make should keep the following principles in mind:
- Dealing in good faith will get you nowhere. In this climate of hardened partisan polarization, one should not expect that cooperation will be reciprocated. There is no formal mechanism by which any bargain struck between the parties’ leaders could be maintained, and the threat of primary challengers, especially on the Republican side, offers a strong deterrent to compromise.
- Don’t fear the nuclear option. According to CNN,
Senate Democrats are weighing whether to avoid an all-out war to block President Donald Trump’s upcoming Supreme Court pick, instead considering delaying that battle for a future nomination that could shift the ideological balance of the court, sources say.
Democrats privately discussed their tactics during a closed-door retreat in West Virginia last week. And a number of Democrats are trying to persuade liberal firebrands to essentially let Republicans confirm Trump’s pick after a vigorous confirmation process — since Trump is likely to name a conservative to replace the late conservative Justice Antonin Scalia.
The reason for the tactic: Republicans are considering gutting the filibuster for Supreme Court nominees if Democrats stay largely united and block Trump’s first pick. By employing the so-called “nuclear option,” Senate Majority Leader Mitch McConnell could move to reduce the threshold for clearing a filibuster from 60 votes to 51 votes.
The problem with this approach is that the Senate majority will eliminate the filibuster as soon as its deployment sufficiently frustrates their goals. Failure to obstruct the first nominee simply means that the filibuster will be eliminated for the next nominee for whom obstruction is threatened. Yes, there are some Republican senators who, out of commitment to the institution or fear of someday being in the minority, advocate the preservation of the filibuster. Whether their advocacy will persist in the face of relentless attack from the base, and especially the portion of the base that cares deeply about the Supreme Court, is an open question. Democrats should not assume that institutional loyalty will prevail over the need to avoid a primary challenge.
- Don’t fixate on whether the nominee shifts the balance of power on the Court. There has been a temptation to minimize the significance of the current vacancy, since a conservative would be replacing another conservative. That temptation should be avoided. There’s no reason not to run up the score when it comes to staffing the Court with ideologically compatible justices. After all, Republicans would have been more sanguine about losing Scalia had they held a margin greater than 5-4 at the time of his death. And a nominee who doesn’t shift the Court’s center of gravity still has value in that the majority party can trade in a departing justice for a much younger model.
- For goodness’ sake, how about some counter-messaging? In all likelihood, Senate Democrats are not going to be able to block the nomination. But if they’re fighting about the parameters of future nominations–and if they’re not, they really need to be–they need to stop ceding the intellectual high ground. Conservatives have beaten the drum for Scalia’s brand of originalism so effectively that large swathes of the public believe that channeling the framers represents the only legitimate form of constitutional interpretation. Why not take advantage of the hearings to build support for an alternative that’s conceptually sound and publicly appealing? It’s either that or search for gotchas in the nominee’s personal or professional background, and if gotchas didn’t keep Clarence Thomas off the Supreme Court, they’re not going to keep off Gorsuch or Hardiman either. The gotcha strategy also doesn’t help the party build a “brand name” that can help it win support for its future nominees; instead, it creates the impression that the party wielding it does so out of desperation because it cannot contend in the realm of ideas.
Democrats were unable to make electoral hay out of the unprecedented treatment of Judge Merrick Garland’s nomination, and they probably will have little success at using the upcoming hearings as a chance to get a second bite at that apple. But too many circumstances militate against treating the Republican nominee as if 2016 had never happened.