Dems to give Trump’s cabinet picks the “Merrick Garland treatment”?
posted at 11:31 am on December 5, 2016 by Allahpundit
That’ll be … difficult to do since they can’t control which nominations reach the floor and foolishly farted away their power to filibuster nominees three years ago.
The left is anxious, though, and wants to see some fight in their team so Schumer and his caucus are stuck with slowdown tactics.
“They’ve been rewarded for stealing a Supreme Court justice. We’re going to help them confirm their nominees, many of whom are disqualified?” fumed Sen. Sherrod Brown (D-Ohio). “It’s not obstruction, it’s not partisan, it’s just a duty to find out what they’d do in these jobs.”…
Democrats could conceivably force up to 30 hours of debate for each Cabinet nominee, which would be highly disruptive for a GOP Senate that usually works limited hours but has big ambitions for next year. The minority could also stymie lower-level nominees and potentially keep the Senate focused on executive confirmations for weeks as Trump assumes the presidency and congressional Republicans try to capitalize on their political momentum…
Democrats are likely to require roll call votes and possibly delay the nominations of Betsy DeVos to be secretary of education and Tom Price to to be Health and Human Services secretary, in addition to Mattis, Mnuchin and Sessions.
The attorney general nominee looks like he’s in for an especially rough ride. Brown said Sessions “was dissed by the Senate once for his racism,” a reference to his rejection by the chamber 30 years ago to become a federal judge.
We’ll have to blog in shifts in February so that someone’s around for all of the inevitable 3 a.m. tweets by President Trump grumbling about Democratic obstructionism. The main target appears to be Jeff Sessions, partly because Dems think they can make hay of the racial accusations that helped block him from a seat on the federal bench 30 years ago and partly because the position he’s up for carries heavier symbolic significance than other cabinet positions do. The Justice Department is supposed to stand apart from politics; the Attorney General sets the tone for how committed the new administration is to the rule of law. Senate Democrats want to delegitimize their friend and colleague Sessions in hopes of casting an early pall over Trump. Sessions’s confirmation is a fait accompli, though. If even one Senate Republican has said he’d opposed to the pick, I’ve missed it. If there’s any suspense on the actual floor vote, it’ll be how many purple-state Dems run away from their base and vote with the GOP. Schumer’s going to lose his first big fight, although if he can give Trump a black eye by damaging Sessions, he’ll probably take that.
What Democrats would really like to do is block at least one of Trump’s nominees but their options for doing that are few. If Trump rolls the dice on David Petraeus for Secretary of State, Schumer might be able to peel off enough Republicans to deny Petraeus 51 votes. The Democratic base will demand party unanimity on that vote, I assume, as payback for Trump’s attacks on Hillary for mishandling classified information during the campaign. If Dems hang together, Schumer would only need three GOPers to defeat the nomination. If Trump doesn’t nominate Petraeus but chooses someone less controversial, like Mitt Romney or Jon Huntsman, then the best and maybe only option to defeat one of Trump’s nominees is … James Mattis, who needs a waiver from the law requiring seven years of retirement before a veteran can serve as Defense secretary. That waiver can be filibustered; all Schumer would need is 41 members from his 48-seat caucus to go along. The political problem is that Mattis may well be the most popular cabinet pick Trump has made. He’s widely respected as intelligent and disciplined and adored by the Marines who served under him. Defeating him would be spun by Trump as a slight to the military writ large and to a man who’s served his country well for decades. And whoever Trump nominates after Mattis’s defeat could be considerably worse. But the left may demand a scalp from Schumer, and if he can’t find one elsewhere, Mattis’s may be the only option. What does Schumer do then?
The fallback plan, I assume, if all of Trump’s cabinet nominees end up being confirmed is for Dems to pay back the GOP for Garland by Borking virtually anyone Trump nominates for the Scalia vacancy on the Supreme Court. (The filibuster still exists for SCOTUS nominees, remember.) You can foresee how Trump will react to that: “If they block my first nominee, my second will be twice as conservative.” It’ll be the judicial equivalent of “the wall just got 10 feet higher.” Democrats might be OK with Borking the second nominee too, though, again on the theory that they’re only showing the same resolve in protecting the vacancy that Republicans showed in refusing to give Garland a hearing and a floor vote. Schumer’s going to need to huddle with red-state Democrats like Tester and McCaskill sometime soon and gauge how much political pain they’re prepared to endure in the name of blocking Trump’s Court nominees. Will they vote for a filibuster on the first nominee? On the second? He can lose seven of them but no more. Given the reports of angry Hillary staffers out for revenge against Trump, I assume some sort of new pressure group will be in place next month for Democrats to lean on the Testers and McCaskills to stand firm against Trump’s picks. But then, I also assumed Hillary would take Wisconsin and Michigan more seriously as swing states than Arizona.
Exit question: If Reid hadn’t nuked the filibuster for presidential nominations three years ago, would McConnell be preparing to nuke it now? I assume the answer is yes, knowing that Trump would throw an epic public tantrum once he discovered that the rule that’s allowing Democrats to block his cabinet picks could be canceled by the GOP at a moment’s notice. But that’s a hesitant yes. There are some old-school Senate traditionalists in the GOP caucus who look dimly on the idea of further restraints on the filibuster, and with a 52/48 Senate, McConnell could only afford to lose two votes. I’m not so sure it happens without Reid’s precedent. Congratulations on your legacy, Harry.