It makes me laugh to imagine what sort of judge Trump would need to select to attract even 60 votes in the Senate in a post-filibuster age. Why, in an era of hyper-polarization, would any member of the minority party vote to confirm the president’s SCOTUS nominee if their vote wasn’t absolutely necessary? In 2009 Sotomayor managed to skate through with 68, a number that seems unimaginable less than 10 years later. (And which was inflated by the fact that Democrats had an overwhelming majority in the Senate at the time.) Supreme Court votes are now mainly an opportunity for senators from the out-party to register their contempt for the administration and the ideology that drives it. Barring a lopsided majority for either party in the chamber in the future, it may be decades before we see another nominee hit 60.
I wish this President would engage in conversations and nominate a consensus candidate. That’s what we’ve done in the past. That’s what America needs and deserves. He won’t.
— Joe Biden (@JoeBiden) June 28, 2018
Advice and consent. Absent that—which we’ve always had for nominees in election years in the past—we shouldn’t move forward with hearings or a vote before the mid-term elections.
— Joe Biden (@JoeBiden) June 28, 2018
I don’t know what Biden means when he suggests that advice and consent is “absent” this time. It’s not absent. It’s just that, with so many minority-party senators viewing SCOTUS nominations as a chance to virtue-signal to their base by voting no, the universe of senators whose advice and consent is needed has shrunk substantially. Trump met with six at the White House yesterday — Republicans Collins, Murkowski, and Chuck Grassley (who’ll chair the confirmation hearings) plus red-state Democrats Manchin, Heitkamp, and Donnelly. Which other votes are in play, realistically?
The best political argument for returning to the days of lopsided confirmation votes has nothing to do with comity or moderation or whatever might be driving Biden’s thinking here. It’s that, under our current system, these votes can be torture for vulnerable senators in the minority party under certain electoral circumstances — like the ones Manchin, Heitkamp, and Donnelly are facing right now. If SCOTUS votes were still essentially about the nominee’s basic fitness for the job, every nominee of the past 25 years at least would have pulled 90. No doubt Trump’s forthcoming nominee will be eminently qualified as well. If the Senate had a tradition of rubber-stamping them it would be a godsend to Manchin et al., since then they could vote in favor and expect to take only mild flak from the left. As it is:
Sens. Kirsten Gillibrand (N.Y.), Cory Booker (N.J.), Elizabeth Warren (Mass.) and Kamala D. Harris (Calif.) took turns at the microphone to demand unwavering opposition to Trump’s nominee.
“The battle lines have been drawn,” Gillibrand said , shouting at the top of her lungs at the rally. “Which side are you on?”…
“Joe Donnelly, Heidi Heitkamp, Joe Manchin, we know you stood with us in fighting back the repeal of health care. We need you to stand with us now,” said Brian Fallon, the executive director of Demand Justice.
Actually, I take it back. Manchin and the rest would still be caught in a vise politically on this nomination even in a political culture in which SCOTUS nominee were normally near-unanimously confirmed because, of course, Roe is now in play with Kennedy’s departure. That’s the original judicial sin that has led to Supreme Court politics becoming the most obnoxious cutthroat spectacle in American government. Even if nominations typically were rubber-stamped by the Senate, this one would be closely run because abortion has been SCOTUS’s plaything for decades. That’s the real folly of Biden’s tweets. He’s asking for a “consensus candidate” … with Roe on the line. It’s impossible by definition since there is no consensus on abortion. What he means by “consensus candidate,” I can only assume, is a conservative candidate who’ll swear an oath written in blood that he won’t overturn Roe.
And even if one existed, he still wouldn’t get 60 votes.
In lieu of an exit question, here’s 2020 hopeful Cory Booker making the somewhat novel argument that confirmation of the nominee should be postponed until after the Russiagate probe is over, whenever that might be, because in theory Trump’s own personal legal fate might be before the Supreme Court before too long. What if he’s subpoenaed and refuses to comply? What if he pardons himself? What if Mueller attempts to indict him? (Extremely unlikely, but still.) His own justices will be the swing votes It’s one thing to oppose Trump’s nominee on abortion grounds; it’s another to do it because, as Booker implies, you think the nominee might be essentially on the take, secretly vowing to protect POTUS from Russiagate in return for the nomination. I wish I could be more indignant about that but of course Booker’s right that protection is what Trump expected from Jeff Sessions in placing him at the DOJ. I don’t think a nominee would make any promises to the president about anything but I wouldn’t bet my paycheck on whether an attempt to elicit a promise might be made.
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