Wednesday’s news of a Supreme Court opening was a tremendous shock to Democrats. Now on day two, they skipped forward a few stages in the grief cycle past denial and anger and on towards bargaining. Two Republican votes are all that stand between Senate Democrats and a Trump pick but try as they might, they’re not finding any takers. Will acceptance ever come?
Welcome to Rabbit Hole, The Daily Beast’s members-only deep dive into the day’s biggest story. We’re taking a look at the odds for blocking a Trump Supreme Court pick, who’s spending big on it, and how we got here.
Options: Senate Majority Leader Mitch McConnell (R-KY) used the “nuclear option”—reducing the vote threshold for moving forward on a nomination from 60 votes to a simple majority—in order to pave the way for the nomination of Neil Gorsuch to the court in 2017. Adam Jentleson, a former deputy chief of staff for retired Senate Majority Leader Harry Reid, tweets that “There's no procedural silver bullet” in Minority Leader Chuck Schumer’s (D-NY) arsenal that can grind down a nomination. If Democrats have a prayer of halting a Trump pick, all 49 have to hang together and peel off two of their Republican colleagues.
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Some people seem to believe the prospect of McConnell’s hypocrisy after a refusal to move on Obama’s nomination of Merrick Garland presents some kind of obstacle; Mitch himself doesn’t seem terribly broken up about the whole thing.
Easier said than done: The quixotic quest for Democrats enlist a moderate or at least Trump-skeptical Republican to help block a Trump Supreme Court nominee is officially down two candidates. Sen. Jeff Flake (R-AZ) came out today and said you can go pin your hopes on someone else, thanks very much. “My goal here is not to block judges. My goal is to get a vote on tariffs, and I have all the leverage I need with circuit court nominees," Flake told The Arizona Republic. Sen. Susan Collins (R-ME) has also ruled out any opposition to a Trump pick, saying it was a “mistake” for Republicans to snub Garland and isn’t in favor of doing it again for a Trump nominee.
With Flake and Collins swearing off any blanket opposition, all eyes are on Sen. Lisa Murkowski (R-AK) for signs she could help Democrats either stall or stop a Trump pick. Murkowski issued a press release promising to “carefully scrutinize” any nominee’s qualifications, but that’s pretty much standard boilerplate for a judicial confirmation.
Adjust your expectations: If you’re pinning your hopes on a Republican senator to join #TheResistance, you’re going to have a bad time. Republicans may personally dislike Trump but they love his judges. The Supreme Court’s rulings on immigration, labor rights, racially charged electoral gerrymandering since he joined the court are all very much to median Republican voter and senator’s liking. As Senate Majority Leader Mitch McConnell (R-KY) has been saying since January, Republicans have confirmed more judges across the federal judiciary in Trump’s first year than any president before him. Pro tip: the party that literally brought Trump’s last Supreme Court pick on the campaign trail is not going to suddenly to throw itself on the tracks to prevent another one.
Norms: Nor is the nuclear option the only senate custom that has suddenly reversed course under McConnell’s leadership. The senate had a tradition around “blue slips” wherein senators were given the right to weigh in on federal judges from their home states before a nomination proceeded. Under Obama, Republicans stopped turning in blue slips and killed nominations before they started. But the Trump era is where norms go to die and McConnell’s new position has been that the slips “ought to simply be a notification of how you’re going to vote, not the opportunity to blackball.”
Short lists: Every open Supreme Court seat brings with it a guessing game for who’s in the running to fill it. The Trump White House already published its list of potential nominees way back in November 2017, taking some of the mystery out of it.
Cake wars: Since President Trump took office, there have been plenty of things to fight about, but culture war issues like abortion and LGBTQ rights haven’t provided the same fodder. That might be about to change. Jeffrey Toobin, one of the highest profile Supreme Court observers, tweeted his prediction that Kennedy’s departure means “Abortion will be illegal in twenty states in 18 months.” That’s quite the bold bet but even if Roe v. Wade isn’t outright overturned, conservative groups may feel emboldened to try and re-litigate a number of issues at the nexus of culture and the law where they’ve not had much success before.
Bankroll: The dark money group Judicial Crisis Network was one of the biggest spenders during Neil Gorsuch’s nomination to the court, spending a massive $10 million on ads to pressure senators into confirming him. Early signs indicate that the group is looking to mount a repeat performance for Trump’s next pick as Politico reports that an ad buy in the million dollar range is in the works.
Convergence: A prominent role for the of Judicial Crisis Network in a confirmation fight would bring a point of tangency between two of the biggest Trump stories running right now. Recall that Judicial Crisis Network played a bit role in one of the many, many scandals around Environmental Protection Agency (EPA) chief Scott Pruitt. Pruitt reportedly used EPA aides to help his wife, Marilyn, get a job at the group, which had previously given $750,000 to the Rule of Law Defense Fund when Pruitt was chairman.
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