Chuck Schumer has declared that he intends to oppose any Supreme Court nominee who falls outside the judicial “mainstream,” even if this means keeping the seat formerly occupied by Justice Scalia vacant until after the 2018 elections. The vow is similar to Mitch McConnell’s promise not to move on Merrick Garland’s nomination, with this key difference — McConnell was (and is) the majority leader; Schumer is not.
To be sure the Republicans are far from having a filibuster-proof majority. Thus, Schumer can try to make good on his promise by filibustering whomever Trump nominates.
The Republican counter to a Democratic filibuster is the “nuclear option.” With 51 votes, the GOP can eliminate the filibuster of Supreme Court nominees, just as the Democrats did for Cabinet and lower court selections.
Working in Schumer’s favor is the fact that McConnell likes the filibuster. He believes in Senate traditions, especially ones that distinguish that body from the House. And McConnell isn’t not the only GOP Senator who feels this way. I wrote here about the problem this sentiment creates.
Working against Schumer is the fact that McConnell’s patience is not unlimited. In response, it would appear, to Schumer’s threat, McConnell stated that “the American people simply will not tolerate” Democrats blocking Trump’s Supreme Court nominee.
I think the translation is “I, Mitch McConnell, will not tolerate indefinitely a filibuster of Trump’s nominee.”
McConnell certainly will not tolerate keeping the vacant Supreme Court seat unoccupied for two years. In a worst case scenario, I can imagine McConnell eschewing the nuclear option as one nominee goes down. But when Trump replaced that nominee with another, there’s no way McConnell would allow Shcumer to sink him or her as well.
Schumer understands all of this, but probably feels compelled by his base to keep saying “hell no” for as long as possible. How many of the 10 Democrats up for reelection in the next cycle in states carried by Donald Trump would be willing to say “hell no” in 2018 is uncertain.
Moreover, taking such a hard line on Scalia’s replacement might hurt Schumer’s cause down the road. Why? Because replacing Justice Scalia with a conservative is what in soccer is known as a “like for like” substitution. It won’t move the Court to the right of where it has been until very recently. At worst (from a leftist perspective), it will restore the Court ideologically to where it was for years — four conservatives, four liberals, and Justice Kennedy (a centrist).
But if Justice Ginsburg (age 83) or Justice Kennedy (age 80) departs, it’s a whole different soccer match. In that case, a conservative Trump appointee would truly alter the Court.
At this point, would Schumer be better off if the filibuster has been nuked in a battle over Scalia’s successor or if the filibuster is still available? The answer seems obvious.
It’s true that the Republicans might well respond to the filibuster of a replacement for (say) Ginsburg by trying the nuclear option. But who knows what the landscape will look like by then?
Perhaps the GOP edge in the Senate will be even smaller than it is now, making the nuclear option more difficult to execute. Perhaps Trump will have become unpopular to the point that GOP Senators are no longer willing to overturn their traditions to help him. Perhaps the case for doing away with the filibuster will seem less compelling when Trump is trying to replace a liberal or a centrist with a conservative than when he’s simply replacing a conservative with a conservative. Perhaps there won’t be enough time left on the Trump clock to force a nominee through if the filibuster is still on the books.
Schumer has a losing hand. He can see a Trump replacement for Scalia confirmed with the filibuster preserved or he can see a replacement confirmed with the filibuster nuked. But I don’t see how he can keep Scalia’s former seat vacant for two years.
It won’t happen and Schumer knows it.