When we first heard that the Democrats were going to automatically filibuster anyone Donald Trump nominated for SCOTUS, I was pretty much on board with what Allahpundit was saying about it. That’s an incredibly stupid idea and all it does is open the door for Trump to nominate whoever he likes and the GOP to approve them, damn the torpedoes, full speed ahead. With a few more hours to think about it, at least some of the Democrats seem to have come to the same conclusion and appear to be looking for a way to gracefully back off from that position. (Daily Caller)
[A]ccording to CNN, Democrats discussed during a private retreat in West Virginia last week that blocking Trump’s Supreme Court nominee — who would replace the late conservative Justice Antonin Scalia — is potentially unwise and it would be better if they saved their big battle over the Supreme Court for when the seat of a more left-leaning justice opens up.
Democrats may be looking at others on the court like liberal justices Ruth Bader Ginsburg, 83, or Stephen Breyer, 78, when it comes to their next fight. Additionally, Justice Anthony Kennedy, often the swing vote on the court, is 80. If Republicans do away with the filibuster and one of the older justices’ seats become available, it could change the makeup of the court for a long time.
Joe Manchin, Bill Nelson, Chris Coons and some other Democrats only speaking off the record were unwilling to back a filibuster. They might vote against the nominee, but they weren’t backing Jeff Merkley’s play. And let’s keep in mind that these aren’t even the vulnerable, red state Democratic Senators who will be feeling the most heat. As Allahpundit mentioned, those are the folks who are already drawing some heat (and probably opposition fundraising) before they’ve even been coaxed out of their corners to take a position.
As I write this, the Senate Leadership Fund is beaming out one press release after another wondering if red-state Democrats whose seats are up in 2018 — Manchin, Heitkamp, Donnelly, etc — are onnboard with Merkley. I sure hope so! I’ve always thought Gorsuch would be preferable to Hardiman because he’s more of a known quantity ideologically. Put him on the bench and you know you’re getting a conservative; put Hardiman on the bench and you’re probably getting a conservative. If Trump was about to bypass Gorsuch for fear that he’d be filibustered, well, there’s no reason to fear that now. Pull the trigger.
The cooler heads among the Democrats seem to be viewing this in a way which best serves their caucus. There’s nothing stopping them from having a long, drawn out confirmation hearing for Trump’s pick and raise all sorts of complaints and then allow it to proceed to a vote where they can all mark down a “No” on their resume. Keep in mind, the person being replaced by Trump’s nominee was one of the biggest conservative lightning rods in the modern history of the court. No matter who takes that seat, it’s not going to push the court any further to the Right than it already was.
On the other hand, should one of the liberal seats (or Kennedy’s) come open in the next four years it would be a massive change in the game. If they’re going to try for a filibuster then, at least they’d have the proper approval of this pick to point to as an example of being “reasonable” and showing some respect to the Oval Office. If they go to the wall on this one and the GOP pulls the trigger on the nuclear option, Trump could nominate Sarah Palin for a potential second opening and they’d have nothing left in the tool kit to stop him.