Should Claire McCaskill determine who will replace Scalia?

Who is the eighth best (or least bad) Democratic Senator? If you answered “I don’t give damn” you are wrong. Under current rules, the eighth best Democratic Senator holds veto power over the person Donald Trump will select to replace Justice Scalia on the Supreme Court.

Confirmation of a Supreme Court nominee requires 60 votes. There will be 52 Republican Senators in the Senate that decides whether to confirm Trump’s first nominee. Thus, eight Democratic Senators must vote to confirm. Otherwise, barring a change in the rules, the nomination will fail.

Who is the eighth least bad Democratic Senator. If you go by the American Conservative Union’s lifetime ratings, it is Claire McCaskill (Missouri). You could also make a case for Tom Carper (Delaware) or Jon Tester (Montana).

McCaskill’s lifetime ACU rating is 12.92. In 2014 and 2105, it was lower than that.

In other words, McCaskill votes the liberal line about 90 percent of the time. Same for Carper and Tester. Giving any of them a veto over Trump’s Supreme Court nominee is unacceptable.

McCaskill and Tester have never voted on a Supreme Court nominee, but Carper has. He voted for confirming John Roberts and against confirming Samuel Alito.

Several Senators who, from a conservative perspective, are rated better than McCaskill, Carper, and Tester also have Supreme Court track records. Bill Nelson (Florida), one of the three “best” Dems in the Senate, voted to confirm Roberts but not Alito. And Harry Reid, with an ACU rating of 16 percent, voted against confirming both. So did Dianne Feinstein, who votes conservative only slightly less often than McCaskill.

Confirming Trump’s upcoming nominee will require a “yea” vote from Nelson, McCaskill, Tester, and Carper (plus four more Dems). It is highly unlikely that a truly conservative nominee would get a “yea” from each. (McCaskill and Tester will be up for reelection in red states in 2018, but both can expect challenges from the left if they vote to confirm a strong conservative).

Unless we want Claire McCaskill, Jon Tester, and Tom Carper determining who will succeed Justice Scalia, the filibuster for Supreme Court nominees must be eliminated.

Getting rid of the filibuster would be the logical culmination of a process the Democrats — no fools they — started when they eliminated it for lower court nominees. McCaskill, Tester, and Carper all voted in favor of that well-calculated move. (Only three Democrats voted “nay” — Carl Levin, Joe Manchin, and Mark Pryor).

The Democrats didn’t eliminate the filibuster for Supreme Court nominees because there were no such nominees to confirm. No intelligent person can doubt that, had the Dems needed to confirm someone for the Supreme Court, the filibuster would have been out the door.

So now that the Republicans control the Senate and a Supreme Court vacancy exists, they will eliminate the filibuster, right? Not necessarily.

Majority Leader Mitch McConnell believes in the traditions of the Senate. What’s left of the judicial filibuster is a Senate tradition.

McConnell may also relish the opportunity to help dictate the Supreme Court nominee. With the filibuster, he can tell Donald Trump that this or that conservative nominee can’t be confirmed. This gives him more influence over the selection than he otherwise would have. He can use that influence to push for a more moderate choice in order to make his life easier.

An argument to retain a portion of the judicial filibuster in the name of “tradition” is ridiculous. The Democrats blew up the tradition when they got rid of the filibuster for lower court nominees.

Moreover, the tradition was fine in traditional times, but not today. In olden days, the Supreme Court did not exercise the outsized influence it does today. Thus, members of both parties almost always deferred to the president when it came to Supreme Court picks.

Moreover, both parties used to contain some liberals, some conservatives, and some moderates. Thus, even in the case of a highly controversial nominee, the president (unless he was a lame duck) could count on loyalty from his party, coupled with the votes of a decent number of members of the other party, to obtain confirmation.

Today, the Supreme Court intrudes into all corners of our lives. Deference to the president is a thing of the past. Nearly every Senator routinely votes along strict party lines. The conditions that militated in favor of the judicial filibuster no longer exist.

The Supreme Court is too important to allow Claire McCaskill’s preferences and Mitch McConnell’s love of tradition to stand in the way of confirming a true conservative to replace Justice Scalia.

We know what the Democrats would do if the situation were reversed. If Republicans don’t act as the Dems would (and eventually will), the Supreme Court will likely thwart conservatives for decades to come.

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