Schumer Sets Expectations High on SCOTUS Fight

I’m not going to complain that new Senate Minority Leader Chuck Schumer is talking tough about filibustering any Supreme Court nominee that Donald Trump offers, even to the point of leaving the position open for his entire four-year term in office. But I think he’s getting people’s hopes up and that he’ll disappoint anyone who actually believes him.

What the Republicans did in blocking Merrick Garland was unconscionable, but it was exactly what I predicted they would do the day that Antonin Scalia died.

Look what happens when I take an afternoon off to visit with my parents and cousins and uncles. Antonin Scalia dies suddenly on a ranch in Texas and all hell breaks loose.

Long time readers of this blog know that I have a policy of speaking no ill of the dead for a decent interval after their passing, even when we’re talking about horrible people.

My policy stands, which in this case means that I can’t say virtually anything at all.

My relatives asked me what it means. I told them that it meant that the next president would select his replacement.

Of course, President Obama has the constitutional duty to name his replacement, and I’m sure he’ll nominate someone, perhaps in consultation with Clinton and Sanders. But the Republicans have already announced that no nominee is acceptable. I knew they would do that the moment that I heard that Scalia is dead.

We’ll try to shame them, but we all know that they’re shameless.

A little while later, I explained that blocking Garland was key for mobilizing social conservatives to turn out to vote for Trump. Some might argue that they would have embraced him at the same level without control of the Court being on the line, but I simply disagree. I think it was a stroke of strategic brilliance to block Garland and that the main idea was never that Trump could win, but that it would prevent a ticket-wide collapse that would cost the Republicans the Senate and maybe even the House.

Schumer is correct to insist that Trump nominate someone in the middle which he says is something that is “hard for me to imagine.” And the Democrats may very well stand up and block Trump’s first nominee. But one of two things will happen. Assuming the threat of eliminating the (apparently useless) filibuster doesn’t collapse Democratic resolve in the first instance, it will collapse their resolve in the second instance. Or, the Senate Republicans will just go ahead and remove the filibuster. At most, the Republicans will tolerate one blockage, and I doubt even that, but they will never countenance a total veto of any conservative Justice.

There is a small chance that hardline Democratic opposition will result in a less radical Justice than the Republicans prefer, which is enough reason to take the position Schumer is taking. But there’s a rancid amount of skepticism right now in this country that our politicians ever have the intention of keeping their promises, and there will be a price paid for setting the expectation that Democrats will fight tooth and nail if they are going to acquiesce in the end.

The worst reason to cave is to preserve the filibuster, as this is the main event and the only reason to have it. If they won’t use it in a situation like this, where a Supreme Court seat (and control of the Court) has literally been stolen from them, then they’ll never use it and it isn’t worth having.

But the Democrats are not going to keep a seat vacant for four years even if the GOP would somehow allow it.

The best outcome would be to fight until the Republicans lose their patience and remove the filibuster, because then the Dems could honestly say that they fought with every tool in their arsenal. And I think the base needs to see them keep that promise.

I just don’t want this all to end not only in judicial catastrophe, which is unavoidable at this point, but in an increase in cynicism and apathy resulting from one more example of politicians not keeping their word.

And, let’s be honest, even if the Democrats succeed in getting a more moderate Justice on the Court, that person will never be perceived as acceptable to the left.

It seems to me that it would be better to set expectations accordingly even if this has the stench of defeatism. The long-term matters more than the short-term.

Martin Longman

Martin Longman is the web editor for the Washington Monthly and the main blogger at Booman Tribune.