Once the rounds of celebratory parties are finished and the warm afterglow of victory begins to fade, President Trump (which is going to take me a while to get used to typing) has a long list of agenda items to see to. There are none more important than turning his attention to the Supreme Court. This was probably the biggest driving factor which drew many of the more skeptical Trump voters to his side. You may recall that back in September The Donald released his shortlist of potential nominees to fill the seat held by Antonin Scalia and it was one of the few moments of the campaign when even his most ardent conservative critics found reason to at least grudgingly admit that he’d gotten it right.
For a refresher, here are the names he floated.
Sen. Mike Lee of Utah, US Court of Appeals Judge Margaret Ryan, Iowa Supreme Court Justice Edward Mansfield, George Supreme Court Justice Keith Blackwell, Florida Supreme Court Justice Charles Candy, US Court of Appeals Chief Judge Timothy Tymkovich, US District Court Judge Amul Thapar, US District Court Judge Federico Moreno and Michigan Supreme Court Chief Justice Robert Young.
While I’m sure that there are more than a few differences between them and we’ll need time to research them more thoroughly, I’m not really inclined to argue for or against any of these candidates when compared to another. As long as they are fair and impartial with a willingness to hew to the Constitution and not be tempted to venture off into some ungainly penumbra of implied rights I’m sure we’ll be fine. Of course, that assumes that Trump sticks to his promise and either chooses from that list or suggests alternates from the same mold.
But as you all are doubtless aware, there are two steps to the process of seating a new justice. He also has to get them through the Senate confirmation process. Chuck Schumer has now thrown out his redecorating plans for the Senate Majority Leader’s office, but the GOP is still far from having a bulletproof sixty seat majority. Some Republicans basically shot themselves in the foot by suggesting that they could block every one of Hillary Clinton’s nominees if she won, leaving us with a perpetually split eight person court for years on end. You can expect the Democrats to cite those threats when they turn around now and do the same. But there’s a sliver lining to this cloud and it comes in the form of Harry Reid’s insistence that he or his successor would immediately invoke the nuclear option. (That was back in the good old days when Reid knew that not only would Hillary win, but the Democrats would control the Senate as well.) This opens the door for Mitch McConnell to do the same.
The editors at the Economist provide a timely reminder of why this needs to happen.
But with Republicans in control of both houses of Congress and the White House, there is only one barrier to Mr Trump seating a justice of his choice: the Senate filibuster, a maneouver that permits the minority party to prolong debate and block votes as long as the majority is weaker than 60 votes. Senate leaders told The Economist over the summer that this last line of defence will be erased no matter which party takes the chamber in the November election. With their successful nine-month stonewall of Mr Garland now looking like a brilliant move to preserve a half-century-long conservative tilt on the Supreme Court, Republicans will have no reason to bow to a Senate rule that hamstrings their new president. Expect the filibuster to dissolve and Mr Trump to have his way with the empty chair—one way or another.
This is the path forward. The Democrats would have done it to us in a New York minute and there’s no reason to go around wringing our hands and worrying about the “uncivil” air and lack of comity in the upper chamber. The people have spoken. Do away with the sixty vote rule and fill the seat. But first and foremost, we must hold the new president to his word and let him know that his own Senate majority will not approve a liberal nominee if Trump decides to waver on his promise.