Supreme Court Justice Antonin Scalia died in February of 2016. Senate Republicans spent the next nine months refusing to hold a hearing, a vote, or a lunch with deli catering on President Obama’s nominee to replace him, Merrick Garland. Donald Trump cheered from the sidelines: “It’s called delay, delay, delay.”
Democrats responded with a series of firm statements about being very, very disappointed. The vacancy stayed vacant, and the slim possibility of a Garland confirmation died this week with the swearing in of the 115th Congress.
Now here we are, with President-elect Trump poised to fill the empty seat on the court–and future seats that could radically shift its ideological composition–with Republicans holding majorities in both the House and the Senate.
Things are about to get really messy.
New York Sen. Chuck Schumer, the highest ranking member of his party, said Tuesday that Democrats are willing to block a Trump nominee using the same kind of obstruction tactics: delay, delay, delay.
Here’s the relevant bit from his exchange with MSNBC’s Rachel Maddow:
Senate Democrats can’t do much of anything on their own with just 48 seats—a simple majority vote is needed to confirm Cabinet picks and lower court nominees, and Republicans can use arcane procedural maneuvers to prevent their Democratic colleagues from filibustering much of their legislative agenda—but the minority party can mess up the approval of Trump’s Supreme Court nominees, where the 60-vote filibuster currently remains intact.
But for how long? Good question. Probably not four years. (And all of this becomes even more complicated if another justice leaves the court, bringing the number of seated justices down to seven.)
The Supreme Court filibuster is basically the last and only weapon that Democrats have at their disposal to challenge the Trump administration in any possible effort to remake our federal courts into what would likely be deeply regressive bodies on everything from reproductive health, voting rights, immigration, guns, corporate accountability, environmental protections, and all manner of discrimination cases.
And some Republicans have signaled that they’re willing to kill the filibuster if Democrats use the same scorched-earth strategies that they have used, quite effectively, over the last eight years. Call it the nuclear nuclear option.
It’s a scary enough political prospect—essentially neutering the minority party in perpetuity—that some Republicans senators like Lindsay Graham and Orrin Hatch aren’t taking the bait. This reluctance to burn down the Senate could force Republicans to consider filling the vacancy with someone resembling a moderate conservative as opposed to, oh, I don’t know, Scalia’s ghost merged with Pat Robertson on lab-developed anti-abortion steroids.
Which is kind of the outcome that Schumer is banking on.
“They won’t have 60 votes to put in an out-of-the-mainstream nominee and then they’ll have to make a choice,” Schumer told Maddow. “It’s gonna be very hard for them to change the rules because there are a handful of Republicans who believe in the institution of the Senate.”
At least for now.