You’d like that, wouldn’t you, libs?
Although, ah, now that they mention it, that *would* be the sporting thing to do under the Gorsuch precedent, no? McConnell’s argument in blocking a vote on Merrick Garland was that, with an election looming, the people should be given the chance to decide which party filled the vacancy. That decision may have won the presidency for Trump, as asking anti-Trump righties to save the Court by supporting him wouldn’t have been nearly as compelling if the majority weren’t already hanging in the balance.
Now Democrats are claiming that turnabout is fair play. We’re four months out from an election. Why not let the people decide if they want a Democratic or Republican Senate vetting the nominee?
JUST IN: Sen. Chuck Schumer: "Our Republican colleagues in the Senate should follow the rule they set in 2016: Not to consider a Supreme Court justice in an election year." https://t.co/mcq37ZJ3NU pic.twitter.com/8XinBnAB72
— ABC News (@ABC) June 27, 2018
Schumer’s right-hand man, Dick Durbin, and 2020 hopeful Kamala Harris agree. No doubt the entirety of the caucus will soon follow. Voting on the nomination after the midterms would turbo-charge Democratic turnout this fall in case it hasn’t already reached turbo levels. With McConnell running the chamber, you might — might — get another Gorsuch, shifting the Court further right. With Schumer in charge, we’re guaranteed another Kennedy *at best*.
McConnell has two counterarguments. One, obviously, is that 2016 was a presidential election year while this is a midterm election year. The rule that the people should choose which party makes the nomination doesn’t necessarily mean that the people should decide which party vets the nomination. That feels like a distinction without a difference to me — why not let the people decide either way? — but it’s what McConnell has to say. Besides, it was Joe Biden who came up with the rule about holding nominations specifically in presidential election years, remember? Makes me wonder what the GOP will say, though, if there’s another vacancy in spring 2020, especially if it comes from the left side of the Court. You think Cocaine Mitch will hold Ruth Bader Ginsburg’s or Stephen Breyer’s seat open through November to give Democrats a chance to fill it? C’mon.
The other argument, astutely noted by Ed, is that we have an example in recent history of a Supreme Court nominee being confirmed shortly before the midterms with little effort from the Senate minority to demand that the vote be postponed until January. That would be Elena Kagan’s confirmation, which happened in August 2010. Three months later the GOP walloped the Democrats in the midterms. Republicans played nice then, Democrats should play nice now. I think the Kagan precedent will be the thrust of the Republican pushback on this, although it’s not quite apples-to-apples, as Schumer will doubtless note. Republicans were a small minority in the Senate at the time, still four years away from taking back the chamber. There was no chance in August 2010 that they’d be in the majority after the midterms that year, with veto power over Obama’s nominations. Contrast that with the 51/49 spread in the Senate now. It’s quite possible, although still unlikely, that Schumer will be in command in January.
Although even if Schumer makes that case, that Republicans in 2010 had no shot at a majority while Democrats in 2018 do, McConnell has a rebuttal. Namely, the filibuster was still in effect for Supreme Court nominations in 2010. The midterms that year gave the GOP no chance at an outright majority but it gave them an opportunity to pad their minority, making it much harder for O’s nominees to beat a filibuster. If Republicans were willing to forfeit that opportunity and go along with voting on Kagan before the midterms, why shouldn’t Democrats forfeit their opportunity now?
And here’s an excellent point from David Drucker:
Shouldn't Democrats welcome a vote on Kennedy's replacement before the election and hope the issue dissipates as a motivator for GOP voters?
— David M. Drucker (@DavidMDrucker) June 27, 2018
Democratic turnout this fall will be turbo-charged no matter what. Republican turnout might not be — unless you pull a 2016 redux by making the future of the Supreme Court depend upon it. Be careful what you wish for, Chuck.
By the way, put me down as a big fan of the Mike Lee option to replace Kennedy. I don’t think it’ll happen, although not for the reason Ed mentioned in his post earlier about creating a Senate vacancy. Vacancies in Utah are filled by gubernatorial appointment; there’d be another Republican in Lee’s Senate seat lickety-split. I think nominating Lee is a hard ask because he was so vocal in opposing Trump in 2016, including trying to lead a revolt against his nomination from the convention floor. POTUS would need to swallow a lot of pride to nominate him, knowing that the media would spend weeks reliving those episodes. (Although he’s capable, as Mitt Romney will tell you.)
There’s no one on his shortlist who would make the base as happy as Lee would, though. Judges are unknown quantities politically, by and large; even with Gorsuch, there was a twinge of apprehension on the right that one never knows if we’ve been saddled with another Souter until it’s too late. Lee, being a politician, is a known quantity. There’s no question he’d end up more reliably conservative on the bench than Kennedy was, which means there’s no doubt he’d reward Trump’s gamble on him. And as a senator, Lee might enjoy a benefit of the doubt in confirmation from centrist colleagues like Collins and Murkowski (and Democrats like Manchin and Heitkamp?) that wouldn’t be extended to a nominee from the federal bench. This can’t be emphasized enough: You only get one shot at this before the midterms. If Trump’s first nominee gets borked the next vote will probably come next year and Schumer really might be in charge by then. So POTUS’s first shot has to be good, capable of getting all 50 Republicans. Does any conservative in the country stand a better chance of that than the well-mannered yet Trump-skeptical Mike Lee?
In lieu of an exit question, here’s how I imagine Ben Rhodes reacted to the news of Kennedy’s retirement.