Regrets — better prepare to have a few. This morning’s declarations have largely mooted this question, but this particular moment should get frozen in amber. When the inevitable moment comes for Donald Trump to replace one of the liberal Supreme Court justices with William Pryor or Ted Cruz on a straight party-line vote, don’t say CNN’s Chris Cuomo didn’t warn you, Richard Blumenthal (via Mediaite):
CUOMO: Well, you’re replacing Scalia right now, and there is a little bit of kind-of-light math, where it’s ‘Well, you’re replacing a conservative, this guy’s a conservative. Maybe it’s a wash, maybe he’s not even as forceful as Scalia was on the court.’ That’s a very high bar. But then you have the political calculation. If you go all in on Gorsuch, what about when Anthony Kennedy resigns? What if Ruth Bader Ginsberg runs out of gas? Now you’re going to have a key decision, and you may have already set precedent allowing for there to be a slim majority vote.
BLUMENTHAL: First, principle and conviction are important, and protecting these core precedents is supremely significant. But second, I know from having been a law clerk on the court, having argued cases before the court, every vote is important and every vote is potentially a swing vote. Every justice can potentially sway other justices. And so to say that this nominee, because he seems bland and non-threatening, is less important than the next one, I think is a mistake.
Democrats won’t think it a distinction without a difference if that time comes. If Trump gets to replace Ginsburg or Stephen Breyer, bet your last dollar that they and their allies will shriek over the injustice of replacing those justices with a die-hard conservative — a move that will actually make it easier to overturn those precedents. Senate Democrats might have built up enough goodwill with moderate and/or traditionalist Republican counterparts with a pass on Gorsuch to rely on them to keep the filibuster in place if used on a subsequent and more provocative nominee. Instead, they’re handing Mitch McConnell all the ammunition he needs to convince those Republicans that Democrats will never allow a Republican-nominated Supreme Court justice to be confirmed, ever.
Roll Call’s Niels Lesniewski calculates that McConnell will deploy the nuclear option on Thursday:
Thursday is the day most likely to see the fireworks on the Senate floor. Under a likely scenario, senators in the morning could vote on the motion to limit debate on the Gorsuch nomination, falling maybe a handful of votes short of the 60 needed under current rules and precedents.
Then, in an echo of what played out in 2013, McConnell could make a point of order that the threshold for breaking a filibuster is a simple majority. The presiding officer, likely President Pro Tempore Orrin G. Hatch of Utah, would rule on the question.
If the presiding senator rules in accordance with precedent, then McConnell could appeal the question, with a vote on whether or not to abide by the ruling. A majority of senators voting “no” would have the effect of reducing the vote threshold. The exact order of events for Thursday may not be telegraphed.
The “echo” is from Harry Reid’s nuclear maneuver over three years ago, of course. McConnell has three more days to be sure that he’s shored up his caucus. That gives Senate Democrats only a few days to experience buyer’s remorse on Schumer’s filibuster. If they don’t, then they may see Justice Pryor or Justice Cruz in their future — and they will have no one to blame but themselves.