What a silly thing to say on the eve of Trump making his announcement. Now he has no incentive to choose a seemingly more moderate nominee, like Tom Hardiman, over someone like William Pryor. If it’s true that the filibuster is coming no matter what, then McConnell’s going to have to deploy the nuclear option no matter what — in which case, why not nominate the most hardline judge you can find?
With Trump prepared to announce his nominee on Tuesday evening, Sen. Jeff Merkley (D-Ore.) said in an interview on Monday morning that he will filibuster any pick that is not Merrick Garland and that the vast majority of his caucus will oppose Trump’s nomination. That means Trump’s nominee will need 60 votes to be confirmed by the Senate.
“This is a stolen seat. This is the first time a Senate majority has stolen a seat,” Merkley said in an interview. “We will use every lever in our power to stop this.”…
It will be only the second time in modern history that the Senate has mounted a filibuster against a nominee. Democrats, including then-Sen. Barack Obama, tried to block the confirmation of Justice Samuel Alito in 2006 but failed. Obama’s Supreme Court nominees each received more than 60 votes but Republicans did not require a supermajority or the procedural vote that Merkley will demand.
Maybe Merkley’s just blowing smoke. He might not know for a fact that Democrats have the numbers to filibuster; it could be he’s trying to bluff Trump so that he’ll do exactly what I just imagined and nominate a hardliner whom Dems can more easily demagogue. The left-wing base wants to see some obstructionist spine as payback for Merrick Garland. If Trump nominates Hardiman, it may be hard for Schumer and Merkley to convince red-state Dems to vote no. If instead he nominates Pryor because suddenly he sees this as a test of wills, Democrats might hang together. Sure, McConnell will end up blowing up their filibuster — never mind what he said on Friday — but that’s destined to happen eventually anyway. And meanwhile, Democrats will earn all sorts of cred from the progressive “Resistance” for having shown some spine towards Trump.
Still, though, wouldn’t Dems rather take their chances on having a less predictable judge like Hardiman on the Court instead of Gorsuch or Pryor? It seems so odd to telegraph the refusenik position before the pick has been made. If you believe the Examiner’s sources, in fact, Trump has told people privately that he’s leaning towards Hardiman precisely because he seems able to overcome a filibuster. If the filibuster is coming anyway, maybe the calculus will now shift towards Gorsuch.
“‘He’s probably the most conservative judge that can get confirmed,'” a well-placed source familiar with the deliberations quoted Trump as saying in a private meeting…
If Hardiman is the pick, he might have his Pennsylvania background to thank. The Keystone state falls within the Third Circuit, so he serves alongside Judge Maryanne Trump Barry, who is the sister of the president and reportedly an advocate of Hardiman. And Pennsylvania voted Republican in the 2016 presidential election for the first time since 1984.
“I think all of that plays in,” the source, who requested anonymity, told the Washington Examiner. “I think the sister, Pennsylvania, and I’m sure he’s being told as far as who he can actually get confirmed.”
As I write this, the Senate Leadership Fund is beaming out one press release after another wondering if red-state Democrats whose seats are up in 2018 — Manchin, Heitkamp, Donnelly, etc — are onnboard with Merkley. I sure hope so! I’ve always thought Gorsuch would be preferable to Hardiman because he’s more of a known quantity ideologically. Put him on the bench and you know you’re getting a conservative; put Hardiman on the bench and you’re probably getting a conservative. If Trump was about to bypass Gorsuch for fear that he’d be filibustered, well, there’s no reason to fear that now. Pull the trigger.