Looks like Mitch McConnell has his work cut out for him. With Democrats and even a couple of Republicans in the Senate calling for a delay in nominating a replacement for the now-open Supreme Court seat, Donald Trump declared this morning that he plans to do his job. To do otherwise would be to shirk his “obligation” as president, Trump argued:
.@GOP We were put in this position of power and importance to make decisions for the people who so proudly elected us, the most important of which has long been considered to be the selection of United States Supreme Court Justices. We have this obligation, without delay!
— Donald J. Trump (@realDonaldTrump) September 19, 2020
Technically, that’s true. Just as technically, the Senate could refuse to consider it until after the election. After all, that’s what the Senate did in 2016, although some of the people who defended that move then on the basis of principles and precedent are twisting themselves into knots trying to insist that principles require the Senate to act this time around. The same people who now claim that we need a ninth justice in case of election challenges and the specter of 4-4 decisions also conveniently forget that the last election had an 8-member court and a true 4-4 ideological divide, too.
The only real principle in play now — and since 2002 — is power, on both sides of the aisle. Democrats blockaded George W. Bush’s nominees because they could, and then Republicans did the same to Obama’s for the same reason. Democrats changed the rules in 2013 to stack the court because they could, and Republicans did the same in 2017 for the same reason. They left Merrick Garland twisting in the wind for the same reason — because they could. And so they did, all of them, over the years.
Frankly, everyone should stop pretending otherwise, especially Senate Republicans who might not have this kind of power for a while after the election. There are no principles or precedents in play in the Senate any more; it’s nothing but brute-force majoritarian power plays all the way down the line, except on legislation. And we’ll see how long the filibuster lasts there after the election.
Give Trump credit for a relative lack of hypocrisy on this score. He understands the power game and isn’t shy about playing it.
So who will it be? A better question might be: Who’s on Joe Biden’s list? After all, Donald Trump laid out his list of potential Supreme Court nominees a couple of weeks ago, hoping to make a hypothetical opening into a campaign issue. With the death of longtime Supreme Court Associate Justice Ruth Bader Ginsburg, it’s now become an acute question.
Don’t expect an answer today:
The Biden campaign has already called a lid, per pooler @jessbidgood, so he won’t be making any in-person campaign appearances today.
— Thomas Kaplan (@thomaskaplan) September 19, 2020
This is an odd time to go dark on the campaign trail. Democrats have poured into the streets demanding action to stop Trump and Senate Republicans from exercising their power to replace Ginsburg. Biden should be leading that effort rather than catching up on his naps.
We already know who’s on Trump’s rather lengthy list. So who gets onto the short list this time around? Washington Post analyst Aaron Blake narrows it down to six contenders, five of whom are women, plus a handful of senators who aren’t going anywhere. At the top of the list is Amy Coney Barrett, whose confirmation hearing to the appellate court set off a debate over religious tests imposed by Democrats:
I wrote in 2018 that Barrett made the most sense for the nomination that went to Kavanaugh, and many of the reasons hold up today. One was her youth (she’s now 48 years old, meaning she could serve on the court for decades). Another was her reputation and telegenic style, along with a family of seven children that could flank her at confirmation hearings.
But maybe the X-Factor with her is this: The feelings she might engender on the left. When Barrett was first confirmed to the federal court in 2017, her past comments about the role of religion in her life and the law drew derision from some top Democrats. Barrett had told Notre Dame graduates in 2006 that “your legal career is but a means to an end, and … that end is building the kingdom of God.”
Sen. Bernie Sanders (I-Vt.) at the time took issue with Barrett’s comments on Christianity and Islam. Sen. Dianne Feinstein (D-Calif.) told her “the dogma lives loudly within you, and that’s of concern.” Sens. Richard J. Durbin (D-Ill.) and Mazie Hirono (D-Hawaii) had concerns as well.
Trump loves stoking culture wars, and what better way to create one for his all-important evangelical Christian base than tempt Democrats to make an issue of Barrett’s religiosity? Of course, Barrett might also be more difficult to confirm if she turns out to be divisive. Senate Majority Leader Mitch McConnell in 2018 notably told the White House that other picks would be more easily confirmed.
Missed in that entire controversy, however, and in the Kavanaugh hearings, was Barrett’s defense of stare decisis. It won’t keep the media and Senate Democrats from a full freak-out over her nomination, but it might give some conservatives pause before signing off on a Barrett nomination. It could be better to get someone more under the radar in this instance, and give the couple of recalcitrant Republicans better political cover to come along on the replacement.
Almost without a doubt, though, the nominee will be a woman. Trump needs to show voters that he will promote women when he can to deal with the wide gender gap in his polling. Plus, it will force Democrats to choose whether to go on a personal-attack crusade like they did with Kavanaugh in order to derail a confirmation, or to avoid looking misogynistic just before the election and turning off vast numbers of voters they will desperately need up and down the ballot in a few weeks.
If it’s not Barrett, who will it be? Blake mentions a couple of district-court jurists appointed in the last two years, but that’s a pretty thin resume. Barbara Lagoa did serve on the Florida state supreme court, however, and she is Cuban to boot. That would help boost Trump with Hispanics and Florida voters, both important to his re-election chances. Joan Larsen looks a bit more likely on the basis of resume, having served three years on the appellate circuit and having been confirmed with 60 votes in 2017, no small feat these days.
If I were to bet, I’d guess Barrett, but Lagoa is an intriguing prospect too. It’s getting pretty clear that we will hear something very soon, however, so whoever gets the nomination might want to start developing a thick skin and a sense of humor right now. She will need it, whoever she is.
Update: Via Twitchy, this reminder of the power-play dynamic from last night is especially interesting … coming from a former Obama adviser:
Harry Reid will go down in history for having handed the court to conservatives when he took the first step toward eliminating the 60 vote requirement for confirmation.https://t.co/CV5L2xsTHp
— Steven Rattner (@SteveRattner) September 18, 2020
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