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June 25th, 2017

Insight

Trump should go nuclear on his Supreme Court nominee

Marc A. Thiessen

By Marc A. Thiessen The Washington Post

Published Jan. 31, 2017

Donald Trump should push the nuclear button.

No, not the one that launches actual nuclear weapons. I mean the one that blows up Democratic obstruction to his Supreme Court nominee and puts a reliable conservative on the court to replace justice Antonin Scalia.

There is no reason for Trump and Senate Republicans not to go nuclear. Senate Democrats have already made clear their intention to stonewall his nominee, before even knowing whom he plans to nominate on Tuesday night. "If the nominee is not bipartisan and mainstream, we absolutely will keep the seat open," Senate Minority Leader Charles Schumer, D-N.Y., recently declared.

No, you won't. Senate Democrats don't have the power to "keep the seat open."

That's because, in 2013, Democrats broke a nearly four-decade-long precedent and changed Senate rules to eliminate the filibuster for executive branch nominations and appointments to the federal circuit or district courts - allowing them to be confirmed by simple majority. Eliminating the filibuster for political appointments that die with a president's term was one thing. But Democrats eliminated the filibuster for lifetime appointments to the federal bench as well. Once that line was crossed, Republicans can now rightly ask: Why stop at the district and circuit courts of appeal? If Democrats openly say they will obstruct anyone Trump chooses, why not follow the precedent they set and apply their rules to Supreme Court nominees?

The reason Democrats eliminated the filibuster for judicial appointments was to let Barack Obama stack the federal courts with liberal judges - particularly the U.S. Court of Appeals for the District of Columbia Circuit, the nation's second-highest court, which reviews many critical cases related to federal laws and regulations. And stack the courts Obama did. He appointed more than one-third of the federal judiciary and reversed the ideological balance of the 13 U.S. circuit courts of appeals. When he took office, 10 circuit courts had conservative majorities. Today, nine have liberal majorities, including the D.C. Circuit.

Going nuclear paid huge dividends for the left. One of the liberal judges Obama put on the D.C. Circuit on a party-line vote was Nina Pillard. She later authored the decision that upheld the Obamacare contraception mandate. When Obama first nominated her Democrats never expected her to be confirmed. She was, White House sources toldPolitico, "a sacrificial lamb, a scalp Republicans could claim while confirming" Obama's other picks. She went on to write the decision that forced the Little Sisters of the Poor to violate their religious conscience.

Obama and Senate Democrats used the nuclear option to shift the ideological tilt of the nation's second-highest court. And if Democrats had controlled the Senate last year, does anyone doubt they would have hesitated to use it to put Merrick Garland on the Supreme Court over Republican objections? Of course they would have. And the next time they are back in the majority, they will not hesitate to use the nuclear option to overcome Republican opposition to a liberal nominee. It is only a matter of time before the nuclear option is invoked. The only question is whether it will be invoked by Republicans now, or by Democrats later.

So why wait? Trump should forget about the Democrats and pick the most conservative nominee possible. He does not even need every Republican to vote with him. He needs just 50 of the 52 Senate Republicans to vote in favor, and Vice President Mike Pence can cast the tie-breaking vote.

By going nuclear, Trump has a chance to do something no modern Republican president has ever done - have a perfect record on Supreme Court nominations. As I have pointed out, over the past three decades, Democratic presidents have appointed four justices - Ruth Bader Ginsburg, Stephen Breyer, Elena Kagan and Sonia Sotomayor - and every single one has been a consistent liberal on the bench. Republicans, by contrast, have picked seven justices - Sandra Day O'Connor, Antonin Scalia, Anthony Kennedy, Clarence Thomas, David Souter, Samuel Alito and John Roberts - and more than half have defected to vote with the court's liberal bloc on critical issues. Democrats have a perfect record, while Republicans are not even batting .500.

One reason is that, while Republicans have consistently allowed qualified liberal justices with whom they disagreed philosophically to move forward (Sotomayor was confirmed 68-31, and Kagan was confirmed by a vote of 63-37) Democrats do not. This meant that Democrats could appoint justices who openly affirmed liberal positions (declaring, as Ginsburg did in her confirmation hearing, that the right to abortion was "central to a woman's life, to her dignity") while conservative nominees had to speak cryptically in terms of judicial philosophy to avoid a Democratic filibuster.

Well, that is no longer necessary. Trump can, if he so chooses, put a nominee on the Supreme Court who has openly and correctly declared that Roe v. Wade is the "worst abomination in the history of constitutional law" - and Democrats are powerless to stop him.

If and when that happens, Democrats will have no one to blame but themselves - because they set the precedent that Republicans will follow. Back in 2013, when then-Senate Majority Leader Harry Reid, D-Nev., invoked the nuclear option for lifetime judicial appointments, The Post reported that after the vote "Reid and his leadership team held a victory party with liberal activists afterward in a room just off the Senate floor."

Let's hope they enjoyed it. Because the party's over.

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