Ed wrote about this earlier today, but after puzzling over it, I still can’t figure out what Schumer’s strategy is. He told Rachel Maddow last night that he’ll do everything he can to block Trump from appointing anyone to Scalia’s seat, just as Republicans blocked Obama from appointing anyone to it. Okay, but … he’s destined to lose that fight. It’s true that there are traditionalists on the Republican side like Orrin Hatch and Lindsey Graham who really, really don’t want to end the filibuster for SCOTUS nominees, but there’s no way they’re going to sit by and let Democrats block every nominee Trump puts forward for the next two years. Republican voters would revolt. If Schumer takes the “we’ll filibuster anyone” approach, Hatch et al. will eventually throw up their hands and vote to nuke the filibuster. Which helps Schumer how?
The wiser strategy, it would seem, would be for Schumer to say that he won’t commit to filibustering everyone Trump might nominate but he will, of course, happily filibuster anyone he deems “extreme” or whatever. That approach would give Hatch and the Republican traditionalists something to think about: If, say, Trump nominates William Pryor this month and Democrats balk, the GOP would have to choose between nuking the filibuster or pressing Trump to nominate someone slightly more moderate in hopes of getting 60 votes. The “filibuster everyone!” approach eliminates that choice and instead puts Hatch et al. in the position of either nuking the filibuster or making peace with the idea of Scalia’s seat remaining vacant until 2019, at least — which is a much easier choice for a Republican. Even dumber, once the filibuster is gone, Schumer will inevitably get more ideological SCOTUS nominees than he would have gotten with the filibuster still intact, since Trump will only need to appeal to Republican senators to get the 51 votes needed for confirmation. And if he suspects that Republicans are planning to eliminate the filibuster no matter what he does, then it’s really stupid to present his position as “filibuster everyone!” He should want to portray himself as reasonable — “sure, we’ll vote for a moderate” — so that the GOP’s rule change seems gratuitous and radical by comparison. Instead, he’s presenting himself as radical, which makes the coming rule change seem more understandable.
It feels like he’s making a play for leverage, except that he has no real leverage. The best thing he could do to avoid getting stuck with someone like Pryor would be to name a few Republican judges whom Democrats would be kinda sorta comfortable with on the Court. That way, when Trump nominates Pryor, he can bring his list to Hatch and Graham and say that if they can get Trump to nominate one of the moderates instead, the messiness over the filibuster can be avoided. Even then, though, how likely is it that Hatch et al. would go to bat for Schumer with the entire right clamoring to have a dependable conservative ideologue on the Court instead? They’d fold eventually. In which case, Schumer’s best move might be to quietly tell the red-state Democrats in his caucus that they’re free to support Trump’s nominee, purely in the interest of making sure that the filibuster survives for now. After all, if the GOP nukes it for SCOTUS nominees, they’ll be that much closer to nuking it for legislation, the true Democratic nightmare scenario. (Especially since Dems have long odds of taking back the Senate in 2018.)
I think Occam’s Razor probably applies. Schumer said he’d try to keep Scalia’s seat empty because he was asked a question about it on a left-wing cable network by a left-wing host with a left-wing audience watching and thus he had to protect his left-wing cred. Republicans stopped our guy from replacing Scalia? Well, then, we’ll do everything we can to stop their guy from replacing Scalia. Even though “everything we can” in this case is essentially a synonym for “squat.” Here’s Schumer lamenting the Democrats’ nuking of the filibuster in 2013, followed by McConnell politely warning him that obstruction at the start of a new president’s term simply won’t fly.
McConnell: "The American people simply will not tolerate" Democrats blocking Trump's SCOTUS nominee https://t.co/9b6sqFrQTM
— CNN Politics (@CNNPolitics) January 4, 2017