As hundreds of thousands of pro-life activists gather in Washington DC for the March for Life, millions of Americans await Donald Trump’s choice to fill the Supreme Court opening left by the passing of Justice Antonin Scalia. Don’t expect that nominee to be the man who told the Senate that Roe v Wade was “an abomination,” CBS News’ Jan Crawford reports. According to her sources, Senate Republicans have convinced the new president that Pryor’s nomination would not succeed based on his outspoken pro-life position:
Sources tell CBS News Pryor’s nomination is unlikely, after Senate Republicans warned about a repeat of his 2003 appeals court confirmation fight.
“I believe that not only is the case unsupported by the text and structure of the Constitution, but it has led to a morally wrong result,” Pryor said then. “It has led to the slaughter of millions of innocent unborn children. That’s my personal belief.”
For two years, Democrats blocked Pryor’s confirmation.
“If you stake out a pro-life position, many in Washington view that as an automatic disqualifier,” said attorney Jay Sekulow, an expert on religious liberty. “It doesn’t work the other way around; if you take a pro-choice position, no one says anything.”
If that’s the case, then it speaks to one of two problems, and perhaps both at the same time. One takeaway from this is that Pryor wouldn’t even have enough Republicans behind the nomination for a confirmation, nuclear option or not. That might be more of an issue with Senate Republicans not wanting to obviously pick that fight on the first Supreme Court nomination with someone so outspoken on Roe v Wade, or maybe just that there are a few Republicans who don’t want to vote for Pryor. The former would be understandable, the latter much less so for a jurist of Pryor’s standing.
Second scenario: Republicans don’t have the votes to pull off the nuclear option. We’ve already seen hints of this, primarily with Orrin Hatch, about keeping the protections of the minority caucus in place. McConnell could lose just Hatch and still have 51 votes, but what about John McCain and his attempts to preserve it through the Gang of 15 compromise? McCain and Jeff Flake wanted to undo Harry Reid’s nuclear move after the GOP won control of the Senate in the 2014 midterms, but McConnell never allowed them the opportunity. It seems unlikely that they’ll back an expansion of it now, at least not over someone as unfortunately provocative as Pryor. That would leave them at 49, too short for a rules change, and just shy of the 50 mark in which McConnell could get Mike Pence to cast the deciding vote.
Therefore it looks as though we’ll see either Neil Gorsuch or Thomas Hardiman. Gorsuch might be the more reliable of the two options, but Hardiman seems solid enough for Trump’s purposes. As Allahpundit wrote last night, though, Trump had better make sure that Hardiman won’t turn into another Anthony Kennedy, or worse, another David Souter. That’s an error that the marchers outside his window today will never forgive. Just ask George H. W. Bush.