Or else what? Chuck Schumer’s leverage to obstruct the next nominee to the Supreme Court was almost as incoherent as his demand for a “mainstream” nominee. Appearing on MSNBC’s Rachel Maddow Show last night, Schumer followed that demand up with an acknowledgment that Democrats wouldn’t consider any nominee mainstream if he or she had full Republican support. That leaves us with … what, exactly? Knee-jerk obstructionism:
“The consequences are going to be down the road,” Schumer said. “If they don’t appoint somebody good, we’re going to oppose them tooth and nail.”
Asked by Maddow whether he would seek to simply keep the seat open rather than confirm a nominee outside the mainstream, Schumer replied: “Absolutely.”
“We are not going to make it easy for them to pick a Supreme Court justice,” he said.
Suggesting that could be any nominee, he said: “It’s hard for me to imagine a nominee that Donald Trump would choose that would get Republican support that we [Democrats] could support.”
The segment starts off with a discussion about how Republicans ‘stole’ the seat from Barack Obama, which Maddow cites in declaring any nominee for the seat illegitimate. She calls this “unprecedented,” apparently without realizing that Democrats led by Joe Biden laid down this principle in 1992, when George H. W. Bush was still running for re-election. Biden argued on the Senate floor that presidents should not fill Supreme Court seats in the middle of an election year, and later told E.J. Dionne that Democrats would stall any such attempt by Bush to fill an opening until after the next inauguration. This is why Republicans like Chuck Grassley referred to this as the Biden Rule.
One exception existed to the Biden Rule: The president would need to provide a nominee consistent with the judicial philosophy of the Senate majority. Unless a president was willing to do that, Biden argued 24 years earlier, the Senate would rightly close ranks and wait until the next session to take up a nomination. Obama refused to work with the Senate majority, and Republicans applied the Biden Rule precisely as Democrats endorsed it in 1992. Like Harry Reid’s “nuclear option” backfire, Democrats only lament Democratic innovations when they have to actually live by them later on.
This kind of knee-jerk obstructionism will almost certainly lead to another taste of that same medicine. Schumer is all but saying that Democrats will filibuster anyone Trump nominates and that the GOP likes, and is declaring Trump’s pick illegitimate entirely. Under those circumstances, Republicans have no reason to refrain from completing Reid’s work and eliminating the filibuster on Supreme Court nominations as well. Schumer tells Maddow he’s relying on a handful of Republicans to prevent that, but that would only be the case if Schumer was talking about the reasonable use of the filibuster. As laid out in this 91-second clip, Schumer’s strategy is to keep the Supreme Court nomination process locked up for four years — and Senate Republicans aren’t going to stand around and let that happen.