Dems Circle Wagons as Supreme Court Battle Nears

Dems Circle Wagons as Supreme Court Battle Nears
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Democrats have begun to reckon with the limits of their political power as Donald Trump's Cabinet takes shape. But in the wake of nationwide protests and swirling questions from liberals about the new president's legitimacy, party lawmakers are under pressure to hold the line on battles ahead.

With President Trump next week expected to announce his choice to fill the Supreme Court seat left vacant by the death of Justice Antonin Scalia last year, Democrats will face a test of their resistance.

While the minority party has stalled the confirmation process, the nominees who have come up for votes so far have been easily confirmed by the Senate, or at least approved by their respective committees—and with the help of many Democrats. Defense Secretary James Mattis, U.N. Ambassador Nikki Haley, and Department of Homeland Security Secretary John Kelly earned well over 80 percent support from the Senate. CIA Director Mike Pompeo received the leanest vote, but still had 66 senators backing him.

Even top liberals such as Elizabeth Warren of Massachusetts and Sherrod Brown of Ohio have agreed to support Housing and Urban Development Secretary-designate Ben Carson, whom Democrats criticized for being uniquely unqualified for the job. Video of Warren excoriating Carson on possible conflicts of interest involving Trump and housing projects during his committee hearing went viral. Ultimately, the senator said she was satisfied with Carson's written responses following up further questions.

The vote margins on more controversial nominees for Democrats, including Steve Mnuchin for Treasury and Tom Price for Health and Human Services, are likely to be narrower but not prohibitive. And Senate rules crafted by Democrats in 2013 require a simple majority for executive appointments, meaning Republicans won't likely need much of the opposing party's help to seat the Cabinet.

But those rules specifically exempt Supreme Court nominees. To fill the vacancy, President Trump will need eight Democrats to vote for his choice. Democrats see this appointment as a chance to flex what little political muscle they have in Washington.

Yet the Democratic caucus isn't entirely united in its approach to the Trump administration. And there are several factors complicating the strategy when it comes to the Supreme Court fight. Ten senators are up for re-election in 2018 in states that are either ruby red or battlegrounds that voted for Trump last November; thus, they have incentives to work with the new administration. The Judicial Crisis Network has already pledged to spend $10 million to hold vulnerable Democrats accountable during the eventual confirmation process. And President Trump has shown he is capable of scrambling alliances on Capitol Hill.

Another factor to consider: Trump's appointment won't alter the balance of the court, since Scalia was a conservative member. The next vacancy, if it comes during this administration, will be arguably more consequential.

Still, many Democrats see the Supreme Court nomination as a key bargaining chip. There have been some suggestions, for example, of requiring more financial disclosure from Trump before considering the nominee.

Trump has reportedly narrowed his options to three: Judge William Pryor of Alabama, Judge Thomas Hardiman of Pennsylvania, and Judge Neil Gorsuch of Colorado.

Democrats’ opposition to the eventual nominee doesn't just involve traditional party politics and differences in ideology. Some in the party are questioning whether this president has a right to appoint a Supreme Court justice at all.

"It's clear to us that this president took office under this major cloud of illegitimacy," said Michele Jawando of the Center for American Progress, a progressive advocacy group. "It's reasonable to ask questions, and ... to discuss whether he is eligible to put someone on the bench for a lifetime appointment."

Jawando argues that the cloud of illegitimacy comes from congressional investigations into Russia's attempts to influence the election, Trump's refusal to release his tax returns (as has been custom for past presidents), and lingering ethics questions involving his business, which he continues to own while his sons are in charge of the company.

Questions among Democrats over the extent to which Russian meddling affected the outcome of the election hit a tipping point days before the inauguration, when Rep. John Lewis said Trump was not a legitimate president. While few lawmakers have gone that far, several have said the cyber hacks influenced the election results. (There is no evidence of any ballot tampering.)

Other Democrats have steered clear of the legitimacy question but have pointed to Trump's loss of the popular vote, his roughly 40 percent approval rating, and the hundreds of thousands of people who marched in Washington, D.C., and around the country the day after inauguration as grounds to oppose him.

The liberal group has been organizing resistance rallies in congressional district offices across the country urging Democratic senators to oppose Trump's White House nominees.

Additionally, the ghost of Merrick Garland continues to linger over how Democrats approach Republican control of Washington. Some in the party are still bitter about GOP obstruction during the Obama administration. The opposition party refused to consider Garland, arguing that the appointment came in an election year and that the next president, earning the consent of voters, should choose the next justice.

Republicans argue that voters agreed with their strategy, and Trump highlighted the next president's role in filling the court vacancy often on the campaign trail.

Minority Leader Chuck Schumer told reporters this week that while Democrats would not seek revenge for the GOP’s rejection of Garland, the party demands a "mainstream nominee."

The definition of mainstream in this case, however, isn't clear and will likely be in the eye of the beholder. But Schumer has also made clear that he would not be opposed to leaving the seat open.

Republicans note that high court nominations typically receive bipartisan support, and that members of their conference crossed party lines to support Obama's previous nominees (though Democrats enjoyed a filibuster-proof majority in the first two years of Obama's tenure).

"There are a fair amount of activists on the left that want to use a nomination as retribution for what they see as an injustice with Merrick Garland, but there's political peril in that," said Josh Holmes, a Republican strategist and former top aide to Mitch McConnell. "The Supreme Court nomination, unlike other judicial appointments, has had a thoughtful review process. ... It's not just an esoteric conversation that happens in Washington. [The process] has deep resonance with the American public."

While Republicans hope that process will compel enough Democrats to support the eventual nominee, some have evoked the possibility of altering Senate rules to extend the simple majority provision to Supreme Court picks.

Majority Leader McConnell hasn’t yet engaged that possibility.

"I’m confident we’ll get a Supreme Court nominee confirmed," he said on "Fox News Sunday." When pressed by host Chris Wallace about the chance of a rules change, McConnell remained coy. "The nominee will be confirmed."

Alexis Simendinger contributed to this report. 

Caitlin Huey-Burns is a national political reporter for RealClearPolitics. She can be reached at Follow her on Twitter @CHueyBurnsRCP.

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