Just days away from the unveiling of the nominee to replace retiring Supreme Court Justice Anthony Kennedy, President Donald Trump has interviewed four people for the seat on the highest court in the land. The shortlist includes: Amy Coney Barrett, judge of the Seventh Circuit Court of Appeals; Brett Kavanaugh, judge of the District of Columbia Circuit Court of Appeals; Raymond Kethledge, judge of the Sixth Circuit Court of Appeals; and Amul Thapar, circuit judge of the Sixth Circuit Court of Appeals.
Meanwhile, Democrats are moving to devise a strategy to stop the next pick from tilting the bench in a more conservative direction, thus reversing recent and historical liberal gains in constitutional jurisprudence. Liberally-favored positions on pro-gay marriage, abortion rights, and voting laws could be threatened once a new justice, most likely more conservative than Kennedy, dons the black robe along with the eight other justices.
According to Politifact, Democrats are considering a number of ideas that will block a nominee or stall a confirmation hearing until after the November midterm elections as Democrats believe they have a fighting chance of retaking the majority in the Senate. Nevertheless, they are beginning to pull out some rather extreme measures.
Flippling moderate Republican senators
Under the current Senate rules to confirm a Supreme Court justice, only a simple majority is needed. With Republicans in control of the Senate by a just a 51-49 margin, Democrats may have their best chance in turning two members their way in the upper chamber. The best hope according to some is to pressure more moderate members like Susan Collins (R-ME) and Lisa Murkowski (R-AK) to vote against their party’s majority.
Both Senators are wary of supporting a SCOTUS pick that is in favor of overturning the landmark case Roe v. Wade, which designated legalized abortion under the right to privacy within the Fourteenth Amendment. Last week, on CNN‘s “State of the Union,” Collins was critical of a nominee that would not uphold the 1973 jurisprudence.
“I would not support a nominee who demonstrated hostility to Roe v. Wade because that would mean to me that their judicial philosophy did not include a respect for established decisions, established law,” Collins said.
Although Murkowski has been less revealing towards her stance on an anti-Roe judge, the Alaska senator has set herself apart from the Republican rank-in-file with non-hostile remarks towards abortion. During a 2016 re-election campaign event she said, “I do not like abortion…But I recognize that the Supreme Court has said that a woman has the right, the reproductive right, to choose. I’ve supported that.”
Both Collins and Murkowski voted to confirm Trump’s first Supreme Court nominee Neil Gorsuch, who an avid pro-life judge. Therefore, if the Roe case is not the main priority in the confirmation hearing, it is unlikely they will break rank.
Inarguably the most cowardly measure to derail, or at least delay a confirmation vote, busting the Senate quorum would be quite a theatrical display of political resistance. Republicans hold 51 seats in the Senate, so they can provide a full quorum to vote to confirm one of Trump’s nominees. However, looking back at Gorsuch’s confirmation, John McCain (R-AZ) was unable to vote due to his failing health.
If, for some terrible reason, McCain is hospitalized in the next few weeks during the confirmation process, Democrats could flee Washington so that no legislative business could be conducted.
If Democrats choose to vacate the Senate building Republicans can still fight back. The Senate’s sergeant-at-arms would formally request and compel the senators to attend the hearing. If they still refused, the sergeant-at-arms can have senators arrested and brought into the chamber to establish a quorum.
Another avenue would be a refusal to vote, which would come without a threat of arrest. However, senators abstaining from a vote must then explain why they are choosing not to participate. The Senate would then decide if the answer was a compelling enough reason, and if the Senate decided not to allow the abstention, the senator would have to cast a vote.
President Trump said he would like to nominate a justice that could serve “40 to 45 years,” meaning his pick would serve until the 2060s, something that have Democrats shaking in their boots. Considering Justice Ruth Bader Ginsburg is 85, Trump could get a third pick if she decides to retire, all but cementing his legacy while President.
A measure which was become more notable recently, both Republicans and Democrats have talked about instating term limits on Supreme Court justices, limiting the generational power each individual nomination has. An 18-year limit has been tossed around, which have each President nominating two justices per term.
The concerns behind this is that the independent nature of the Court would be undermined. Even though the Court is split along jurisprudential partisan lines, the justice would be tied to political ebbs and flows, rather than the Constitution.
Senate Democrats like Cory Booker (D-NJ) have argued that Trump should not be allowed to file a nominee until Special Counsel Robert Mueller concludes his probe into Russian collusion in the 2016 presidential election. Those on the left believe the investigation could raise new legal questions of presidential power that may ultimately be decided by the Supreme Court.
New Deal-style court packing
In 1937, President Franklin D. Roosevelt proposed a legislative initiative to add more justices to the Supreme Court to obtain favorable rulings regarding New Deal legislation that the Court had previously ruled unconstitutional. Since the Constitution does not define the size of the Supreme Court, the central provision of the bill would have granted the President power to appoint an additional justice, up to a maximum of six, for every member of the Court over the age of 70 years and 6 months.
Of course, FDR’s scheme was an absolute power grab that set him apart from many disgruntled Americans. Though, since the 32nd President is a hero to modern progressives, they have embraced the idea to preserve and advance the resistance-minded agenda.
In theory, a Democratic Congress and a Democratic White House could push through the beginnings of the Constitutional ramifications needed to pack the Court and expand the liberal side of the bench. However, such a move would dangerously erode the judiciary’s role as a check on the other branches of government. As well, this would assume that there is going to be a massive takeover of the House and Senate, paving a way to Pennsylvania Avenue in 2020.
Democrats, with their whinging about Trump’s Twitter account, the rule of law, and anything pro-American, have destroyed their 13-point lead from just one year ago. There are also 10 Democratic senators running in states which Trump carried in 2016, wherein running further to the left just doesn’t work.
When the nomination process comes up in the next few weeks, it will show the highly emotional nature of Democratic agenda, even if logic isn’t involved. Considering a good amount of those Senators are running for re-election in now-red states, it may be hard for them to choose between excoriating a Supreme Court nominee and finding favor in their home state.