Is this the first time he’s said definitively that he wants the filibuster gone? It’s not a surprise — McConnell has been talking tough on the filibuster lately too, as you’d expect before the big showdown. The surest way to get Democrats to back down and let the new nominee through is by warning them that any effort at obstruction would be futile anyway. Still, though, when the president calls for rolling back part of the filibuster, that’s news with a capital “n” even if we all assumed it was his position anyway.
President Trump tells Sean Hannity he wants GOP to use the “nuclear option” if Democrats filibuster his Supreme Court nominee pic.twitter.com/MEvSpuAnF4
— Bradd Jaffy (@BraddJaffy) January 26, 2017
Let me throw you a curveball by predicting that Trump’s nominee won’t be filibustered. That’s not because Democrats will chicken out but because it seems increasingly likely to me that Thomas Hardiman will be the pick, and Hardiman won’t be easy to oppose. He doesn’t have a record as an ostentatious ideological warrior and his background, both working class and Pennsylvanian, is exactly the sort of constituency Democrats will be nervous about alienating after 2016. If Hardiman’s getting through no matter what, why risk pissing off Rust Belt voters by filibustering him? In particular, why would you risk it if you’re a red-state Democrat who’s up in 2018? There are likely to be other SCOTUS battles during Trump’s presidency. Pick your spots.
As for why I think Hardiman has the advantage over Neil Gorsuch despite the recent reporting giving Gorsuch the edge, it’s simple. Trump’s sister is reportedly recommending him. Never bet against the influence of the Trump family on POTUS:
Judge Maryanne Trump Barry, who serves with Hardiman on the U.S. Court of Appeals for the 3rd Circuit, has spoken to her brother in favor of elevating him to the high court, according to two people familiar with the conversations.
“Maryanne is high on Hardiman,” said one adviser who has spoken directly with the president about the matter…
A second Trump adviser said that while Barry has unquestionably backed Hardiman, her support has not been determinative: “I don’t think it is fair to say the only reason he’s got juice on the list is because of her.”
A third official who’s been involved in the process said winning support from Trump’s family has been one of the key elements of the search.
There are two big risks in the Hardiman pick, one for Democrats and one for Trump. For Schumer and his caucus, the risk is that the lefty base will demand a filibuster no matter what, partly as payback for GOP obstruction on Merrick Garland and partly as a test for them to show that they’re resisting Trump with every weapon they have. The fact that McConnell can disarm them of that weapon at any time thanks to a precedent set by Democrats themselves won’t matter. Schumer and his red-state colleagues might have to filibuster to prove their partisan bona fides — but if voters end up liking Hardiman and his blue-collar story, Democrats will get nothing out of it politically. On the contrary, by giving McConnell a reason to nuke the filibuster, Schumer will have ended up clearing the way for future nominees to be confirmed by simple majority no matter how “extreme” they might be. You would think, if Democrats are going to have the filibuster taken away from them, they’d want to make sure it happened vis-a-vis a nominee whom they’ve successfully persuaded the country is radical. That way, it looks like Trump and McConnell are behaving imperiously towards justified minority objections. They’re going to have a hard time convincing people that Hardiman is radical, though, in which case it’ll look like Trump and McConnell are simply removing an unfair obstacle to confirmation. Then the next nominee can be as far right as Trump and his team like and Schumer will be powerless to stop it. They’re better off letting Hardiman through and keeping their powder dry.
The big risk for Trump is that because Hardiman isn’t as much of a known ideological quantity as Gorsuch, there’s a chance he’ll be less orthodox on the Court than everyone hopes. If that happens, it’ll be a political fiasco for Trump. The pitch to the GOP’s Trump skeptics last fall was that they had to lay aside their qualms about him and be good soldiers for the sake of preserving a conservative Supreme Court. Trump would fill the Court with Scalias, repaying them for their faith. If Hardiman is more Kennedy than Scalia, Trump will never hear the end of it — especially since he’d be passing over a conservative star like Gorsuch for the vacancy on the advice of his not very conservative sister. Trump is going to own the Hardiman pick even more totally than he would own a pick of Gorsuch, Pryor, or Sykes. I hope for his and everyone’s sake that it works out.
Tangentially, there’s a poll floating around today out of Utah showing Jon Huntsman crushing Orrin Hatch in a primary there, 62/21. I mention that here only because Hatch has been loudly skeptical of eliminating the filibuster for legislation; there’s a chance he might resist eliminating it for Supreme Court nominations too, as he’s a Senate traditionalist. Question: If he’s thinking of running for a new term in 2018, does he dare buck Trump by voting against nuking the filibuster if it comes to that? And if he does, would Trump punish him by wading into the Senate primary there, to try to defeat him? I assume Hatch will go along with whatever McConnell wants, but he’s 82 and isn’t sure yet if he’s running for reelection. If he decides against running, there’d be nothing Trump could do to flip him for the next two years. All Schumer would need in that case is for two more Republicans to vote no on ending the filibuster and Trump and McConnell would be stuck. I doubt seriously that that’ll become a problem, but it wouldn’t take much of a revolt in the GOP caucus to create a major logjam on SCOTUS nominees.