Remember Merrick Garland!
Why Democrats must take a stand against Trump's Supreme Court nominee
Donald Trump will announce next week his choice to fill the Supreme Court seat of the late Justice Antonin Scalia. According to various reports, he has narrowed his choices down to a few extremely conservative white men (a shock, I know). Democrats don't have many weapons to fight this battle other than their outrage, but there's one trigger they should pull: Filibuster this nomination. It won't stop Trump's nominee from joining the Court, but it's still worth doing.
If Democrats take that step, they'll be making clear just how extraordinary the current situation is, because filibusters of Supreme Court nominees are, though not completely unprecedented, highly unusual — the last one was nearly half a century ago, when Republicans filibustered Lyndon Johnson's 1968 nomination of Abe Fortas to be chief justice.
And this nomination is extraordinary, not because of the ideological extremism of the nominee, whom at this point we can presume will be little different from the justice he'll be replacing. There will be plenty of substantive reasons for Democrats to oppose him, including the fact that he'll almost certainly be a vote to overturn Roe v. Wade. But this is an extraordinary moment because of what Republicans did to get us here.
Subscribe to The Week
Escape your echo chamber. Get the facts behind the news, plus analysis from multiple perspectives.
Sign up for The Week's Free Newsletters
From our morning news briefing to a weekly Good News Newsletter, get the best of The Week delivered directly to your inbox.
From our morning news briefing to a weekly Good News Newsletter, get the best of The Week delivered directly to your inbox.
As you'll recall, when Scalia died last February, President Obama nominated Merrick Garland, a moderate appeals court judge who had received glowing praise from many Republicans. But GOP senators decided to invent a new rule for nominees to the high court, a rule stating that when a Democrat is president, he only gets to fill Supreme Court vacancies for the first three years of his four-year term. They insisted that it was necessary to "let the people decide" who the next justice should be, even though the people decided quite clearly by electing and re-electing Obama. Republicans made a gamble that the political fallout from this unprecedented move would be minimal, and if their eventual presidential nominee won the election, they would have prevented the Court from moving to the left. It was a gamble that paid off.
But it's important that Democrats not let anyone forget just how reprehensible that move was. So no matter who President Trump nominates, every Democrat ought to say something like this:
If Democrats do decide to filibuster, they may well succeed in stalling the nomination. They have 48 seats in the Senate, seven more than they need to sustain a filibuster, even if they lose the votes of a few senators from conservative states, like Joe Manchin of West Virginia and Heidi Heitkamp of North Dakota, who can be counted on to desert their party whenever something controversial comes up.
And we know what would happen then: Republicans would change Senate rules to disallow filibusters on Supreme Court nominations, as they've already threatened to do. Then the nominee will get a vote, and he'll be confirmed with the votes of every Republican and a few Democrats.
Which, to be honest, is fine. Before the election when everyone assumed that Hillary Clinton would win, Senate Democrats warned that they'd do the same thing if Republicans filibustered Clinton's nominee for this seat.
And maybe there shouldn't be filibusters of Supreme Court nominees, which have become much more likely now that we're in such an intensely partisan age. There was a time when nominees would routinely be approved almost unanimously; Scalia was confirmed on a 98-0 vote, while liberal Ruth Bader Ginsburg was confirmed 96-3. But that time is behind us. And you can be sure that the filibuster's days are numbered one way or another when it comes to Supreme Court nominations. If Republicans get rid of it now, Democrats will thank them the next time there's a Democratic president.
But in the meantime, a filibuster of Trump's nominee would be true to the original spirit of the filibuster, which was once used by the minority party only to register a powerful dissent in extraordinary circumstances. Well, this is an extraordinary circumstance, and Democrats have to take a stand.
This is just one of the battles they're likely to lose over the next four years, but sometimes, the way you lose matters a great deal. This is one of those times.
Create an account with the same email registered to your subscription to unlock access.
Sign up for Today's Best Articles in your inbox
A free daily email with the biggest news stories of the day – and the best features from TheWeek.com
Paul Waldman is a senior writer with The American Prospect magazine and a blogger for The Washington Post. His writing has appeared in dozens of newspapers, magazines, and web sites, and he is the author or co-author of four books on media and politics.
-
The growing thirst for camel milk
Under the radar Climate change and health-conscious consumers are pushing demand for nutrient-rich product – and the growth of industrialised farming
By Harriet Marsden, The Week UK Published
-
'Good riddance to the televised presidential debate'
Instant Opinion Opinion, comment and editorials of the day
By Harold Maass, The Week US Published
-
Caitlin Clark the No. 1 pick in bullish WNBA Draft
Speed Read As expected, she went to the Indiana Fever
By Peter Weber, The Week US Published
-
Arizona court reinstates 1864 abortion ban
Speed Read The law makes all abortions illegal in the state except to save the mother's life
By Rafi Schwartz, The Week US Published
-
Trump, billions richer, is selling Bibles
Speed Read The former president is hawking a $60 "God Bless the USA Bible"
By Peter Weber, The Week US Published
-
The debate about Biden's age and mental fitness
In Depth Some critics argue Biden is too old to run again. Does the argument have merit?
By Grayson Quay Published
-
How would a second Trump presidency affect Britain?
Today's Big Question Re-election of Republican frontrunner could threaten UK security, warns former head of secret service
By Harriet Marsden, The Week UK Published
-
'Rwanda plan is less a deterrent and more a bluff'
Instant Opinion Opinion, comment and editorials of the day
By The Week UK Published
-
Henry Kissinger dies aged 100: a complicated legacy?
Talking Point Top US diplomat and Nobel Peace Prize winner remembered as both foreign policy genius and war criminal
By Harriet Marsden, The Week UK Last updated
-
Trump’s rhetoric: a shift to 'straight-up Nazi talk'
Why everyone's talking about Would-be president's sinister language is backed by an incendiary policy agenda, say commentators
By The Week UK Published
-
More covfefe: is the world ready for a second Donald Trump presidency?
Today's Big Question Republican's re-election would be a 'nightmare' scenario for Europe, Ukraine and the West
By Sorcha Bradley, The Week UK Published