Donald Trump’s surprise victory has stoked speculation about a multitude of actions he might take as president, including nominating a successor to the late Supreme Court Justice Antonin Scalia. (President Obama’s choice for the Scalia seat, Judge Merrick Garland, who has been denied a hearing by the Republican-controlled Senate, is unlikely to be on Trump’s short list.)
An equally tantalizing question, for me anyway, is whether Senate Democrats will be consistent in taking the position that the Scalia vacancy must be filled for the good of the court.
At a newsconference in September with four other Democratic senators and some of Garland’s former law clerks, Sen. Amy Klobuchar of Minnesota (dating herself) said: “This is not just some TV show [like] ‘Eight is Enough.” Eight is not enough on the United States Supreme Court … so we ask our colleagues to do their jobs.”
I wonder if she’ll feel the same way about an eight-member court when it’s Trump making the nomination for that ninth seat.
Of course, the Democratic argument that “we need nine” was always an argument of convenience, impossible to divorce from the political context of the ninth seat being filled (or so Democrats hoped) by a Democratic president. Though Garland wasn’t as ideological a liberal as some nominees Obama might have chosen, Democrats believed — and Republican senators agreed — that he likely would be a reliable vote for the court’s liberal wing in cases with a high ideological profile.
That, of course, was why Senate Majority Leader Mitch McConnell stalled on giving Garland a hearing, much less a confirmation vote. It had nothing to do with the supposed principle that vacancies shouldn’t be filled in an election year and everything to do with influencing how the court would rule on politically charged issues (for the Republicans, that meant gun-control laws in particular).
So now that we’ve established that both parties are hypocrites, should we just accept that Senate Democrats will abandon the idea of “we need nine” and oppose any Trump nominee because she or she might vote the wrong way on an issue dear to their party, such as abortion or gay rights.
I hope not. Call me idealistic, but I think that “we need nine” is a principle worth defending regardless of who controls the Senate or the White House. It is bound up with a larger principle that the Los Angeles Times editorial board has defended during both Democratic and Republican administrations. Here is how we put it in an editorial last month criticizing Sen. John McCain for saying that Republicans would oppose any Supreme Court nominee proposed by a President Hillary Clinton:
“McCain’s outrageous threat also highlighted a longer-term problem: the bipartisan repudiation of the idea that the Senate should defer to a president’s choice of a Supreme Court justice so long as the nominee is professionally well qualified, untarnished by accusations of personal wrongdoing and within the mainstream of legal thought.”
The editorial noted that large numbers of Democratic senators (including Barack Obama) voted against the nomination of Chief Justice John Roberts, and more Republicans opposed Democratic nominee Elena Kagan. Roberts is a conservative, Kagan a liberal, but both are in the broad mainstream of legal thought and both were rated “well qualified” by the American Bar Assn.
During the campaign, Trump released two lists of potential Supreme Court nominees, comprising mostly conservative jurists including some darlings of what might be called the legal right. Some of the potential nominees are more moderate than others, but none would be likely nominees in a Democratic administration.
But it’s possible that when Trump gets around to nominating a replacement for Scalia he will look beyond this list. Republicans in the Senate might press him to choose two prominent conservatives well known to the justices: Judge Brett Kavanaugh, a George W. Bush appointee to the federal appeals court in Washington, D.C., and former Bush Solicitor Gen. Paul Clement.
For Democratic senators to filibuster — or even vote against — these men just because they were conservatives or Republican nominees would perpetuate the partisanship around Supreme Court confirmations that in its extreme form has kept Scalia’s seat empty eight months after the president nominated a successor. Democrats shouldn’t rubber stamp a Trump nomination, but neither should they reject it reflexively.
(Of course, if Democrats do filibuster a Trump nominee, it may be the last such filibuster. With Republicans retaining control of the Senate, Majority Leader Mitch McConnell could trigger the “nuclear option” and change the rules to ensure confirmation of justices by a simple majority.)
Giving a Trump Supreme Court nominee a fair hearing would also strike a blow for intellectual consistency. If eight wasn’t enough when Obama was president, it isn’t enough when Trump is in the Oval Office.