Because of the two defining features of modern American politics – Republican ruthlessness and Democratic strategic blunders – President Trump will almost certainly get to choose a more conservative replacement for retiring Supreme Court Justice Anthony Kennedy.
There is one way the Democrats’ minority in the Senate would prevent a new Justice from being confirmed before the midterm elections, by taking the risky and unprecedented step of simply refusing to show up for work:
Currently, Democrats control 49 Senate seats — two short of the simple majority they would need to filibuster a Trump nominee. So how could they “technically” block the president’s pick? And even with all the outrage on the left, why are they still unlikely to do it?
Earlier this month, University of Miami political scientist Gregory Koger, a specialist in filibustering and legislative obstructionism, explained on Vox.com that, according to Article 1, Section 5 of the U.S. Constitution, “a majority … shall constitute a quorum to do business” in the Senate — meaning that Democrats can basically shut the place down by refusing to vote on anything.
With only the barest 51-vote majority — and one of their own, Arizona Sen. John McCain, on extended leave in Arizona as he grapples with what is likely to be terminal brain cancer — Republicans would have difficultly mustering a quorum without at least some Democratic help. “In the month of June, there have been an average of 1.8 Republican absences across 18 roll call votes,” Koger wrote, “so even if McCain returned to the Senate, the majority would struggle to consistently provide a floor majority.” If McCain doesn’t return, and all 49 Democrats refuse to participate, the 50 Republican senators left in Washington would fall one short of a quorum. (The Senate precedents on quorums do not mention whether Vice President Mike Pence could contribute a 51st vote.)
In that case, “the Senate can do nothing,” Koger concluded. “No bill can pass, no amendment can be decided on, no nominations can get approved.” The Senate would screech to a halt for lack of a quorum — and Democrats could conceivably delay a confirmation vote until a new Senate, perhaps with a narrow Democratic majority, is seated next January.
The fact that Democrats can shut down the Senate, however, doesn’t mean they will. “This would be a confrontational tactic,” Koger explained. “Confrontational” is probably too gentle a word for it. Obstructing a president’s Supreme Court pick by completely shutting down the Senate would require political winds that were blowing strongly in Senate Democrats’ favor. It’s not clear they are.
For one thing, 10 Democratic senators are running for reelection in states that Trump won in 2016, and Heidi Heitkamp of North Dakota, Joe Manchin of West Virginia, and Joe Donnelly of Indiana all voted to confirm Gorsuch. Would every one of these at-risk senators be willing to imperil their reelection chances by striking over Trump’s next nominee? Democrats can’t afford a single defection.
Politico has a short list from whom Kennedy’s likely replacement will be appointed – most of whom certainly appear qualified, though we all know this has much more to do with partisan politics than it does with legal qualifications.
One further point for despairing liberals, from conservative Marc Thiessen: it is by no means guaranteed that a Republican appointee will be as doctrinaire as they think.
…Trump will have to break the mold of his Republican predecessors. Over the past three decades, presidents from his party have picked seven justices, and several have turned out to be disappointments to conservatives. President Ronald Reagan picked three justices (Sandra Day O’Connor, Scalia and Kennedy), but only one, Scalia, was a consistent conservative. President George H.W. Bush picked one solid conservative (Clarence Thomas) and one (David Souter) who was not. George W. Bush did better, appointing two conservatives, Samuel A. Alito Jr. and John G. Roberts Jr. But even Roberts disappointed conservatives when he cast the deciding vote to uphold the Affordable Care Act in a stroke of judicial activism. If Trump picks not one, but two reliable conservative justices, he will secure the best record of Supreme Court appointments by any modern Republican president.
The new guy, like Gorsuch, likely will not be a Souter. But I wouldn’t be surprised if Roberts provides Republicans with some unpleasant surprises in the coming years.